CHAPTER - 1

INTRODUCTION
Human trafficking has a history coterminous with that of society and has existed
in various forms in almost all civilizations and cultures. It is a trade that exploits the vulnerability
of human beings, especially women and children, in complete violation of their human rights. It
makes human beings objects of financial transactions through the use of force, duress or
deception, for various purposes, chief among them for commercial sexual exploitation and for
exploitative labor
It is well established that trafficking in persons is a multi-dimensional form of
exploitation. The exploitation may be for many reasons - prostitution, other sexual exploitation,
forced labor, begging, forced marriages, adoption, transplantation of human organs, etc. It raises
important questions of human rights protection especially of vulnerable sections like women and
children. It is an organized crime extending beyond boundaries.
There is a need world over to strengthen mechanisms to combat trafficking. In
this context a series of initiatives have begun involving key groups like police, prosecution,
judiciary, NGOs, etc. in order to ensure that response to trafficking is made effective.
Although there are a number of studies dealing with trafficking, they generally
focus on specific aspects like prostitution, pornography, child trafficking, etc. It was thus
imperative to have a comprehensive look at all substantive legal provisions which had a bearing
on human trafficking. This document aims at looking afresh at the legal framework relating to
trafficking. It analyzes legislations relevant to trafficking and looks at important cases dealing
with specific points of law.
Since the main target group is the law enforcement and justice delivery systems,
including police, prosecutors and judiciary, analysis of legal provisions have been done from this
perspective. Additionally, vulnerable sections such as women and children and the protection of
their human rights have also been addressed. Gaps in terms of definitions and interpretations
have also been discussed where ever relevant.
1.1 HISTORICAL BACKGROUND OF HUMAN TRAFFICKING
We can understand the phenomenon of 'trafficking in persons', and the need for a
clear and unambiguous definition better if we trace the historical development of the concept of
"trafficking", and see what it has meant to different people, organizations and governments over

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time. The earliest understanding of "trafficking" comes from UN instruments. The term "traffic"
was first used to refer to the so-called white slave trade in women around 1900. The trafficking
and voluntary migration of white women from Europe to Arab and Eastern States as concubines
or prostitutes was of particular concern to European middle-class men, women and governments.
The result was the creation of an international agreement for suppression of the white slave
trade in 1904. At this time, "traffic" meant the movement of women for an immoral purpose i.e.,
prostitution. Initially, this definition required the crossing of country borders, but by 1910 it
changed to acknowledge traffic in women could occur within national boundaries. Traffic in
women was seen as related to slavery, but also to closely linked to prostitution.
The link between trafficking and prostitution solidified even more in the
following decades, most clearly in the adoption of the 1949 Convention. We already discussed
this problematic treaty under 'Primary Human Rights Instruments'. This early confusion of
trafficking with prostitution is still seen in the anti-trafficking activism of some individuals,
organizations and governments today.
Unfortunately, governments of some destination countries also continue to
conflate trafficking with undocumented migration, particularly into prostitution. The response of
such governments is predictable and harmful to women; they adopt stricter immigration policies
particularly to combat the movement of young women, under the guise of combating "illegal
trafficking in persons". Some countries of origin object to this approach because it violates the
rights of their citizens abroad. However some countries of origin have adopted similar policies to
prevent young women from leaving their country under the mistaken belief that they are
preventing 'trafficking'.
So we can see that at different times in history, the then prevailing concept of
trafficking has
(1) Ignored the human rights of trafficked persons;
(2) Been used by moralists to dictate to women in prostitution;
(3) Been used by governments to restrict the movements of women.
1.2 TRAFFICKING: MEANING
Bales (2004) defines contemporary slavery as a social and economic
relationship in which a person is controlled through violence or paid nothing, and economically
exploited. In the old form of slavery, Africans were specifically transported to the New World

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based on their race and specific capabilities. The new form of slavery goes beyond racial lines.
As Bales argues, both the new and old forms are characterized by violence used to maintain the
slave. Not only is violence used, but victims are subjugated and stripped of their free will. Slaves
were often marginalized and exploited by their slave master. In other words, black slaves could
not buy their freedom. Although a slave in this category could usually be enslaved for life,
modern slavery however, is transient and occasionally temporary. Bales asserts that traffickers
minimum hold-up (period of captivity) is usually between three to six months, or longer,
depending on the situation and the circumstance.
Today, human trafficking involves the movement of victims, usually women and
children, across borders legally or illegally. These victims may be either documented or without
documentation as they head into an unknown destination, and in most cases the person being
transported is unaware of the consequences thereof. And sometimes victims may be oblivious of
unintended consequences such as arrests and deportation while in transit to the new destination.
Many of the forms of human trafficking involve the movement of people from one place to
another often unknown to the victim. In many cases, this involves victims being lured by better
opportunities in the form of jobs elsewhere. Hogue (2010) argues that what clearly defines
human trafficking today is still unknown despite various definitions by international
governmental and nongovernmental organizations.
Although slavery has been abolished for a century now, the practice of slavery
still exists albeit in different forms. In todays literature, modern day slavery is human
trafficking. Although most of the discussions on human trafficking tend to focus on forcing and
transporting women for labor and sexual exploitation, the majority of modern day trafficking
cases can be found in fact everywhere in our communities and societies.
Until 2000 the definition of human trafficking was varied and reflected
geographical and regional locale. In order to consolidate these regional definitions, the United
Nation in 2000 promulgated the protocol to end human trafficking in the world. This protocol
which came into force in December 2003 seeks among others to suppress, punish, and to prevent
the trafficking of women and children worldwide. At the same time, the United Nation for the
first time defined human trafficking as ;
the recruitment, transport, transfer, harboring, or receipt of persons by means of
the threat or use of force or other forms of coercion of abduction, of fraud of deception of the

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abuse of power or of a position of vulnerability or of the giving or receiving of payments or
benefits to achieve the consent of a person having a control over another person for the purposes
of exploitation. Exploitation shall include at a minimum, the exploitation of the prostitution of
others or other forms of sexual exploitation, forced labor or services, slavery or practices similar
to slavery, servitude or the removal of organs. The consent of a victim of trafficking in persons
to the intended exploitation set forth (above) shall be irrelevant where any of the means set forth
(above) have been used.
This comprehensive definition of human trafficking not only sets off the goals and
parameters upon which nations can fight human trafficking, but also has been ratified by up to
117 nations worldwide. On the basis of these definitions, it can be discerned that human
trafficking involves the transport of individuals usually children male and female alike under
deceptive circumstances for the motive of profiting of their labor either internally or across
borders. This definition is also consistent with Pennington et al. (2008) when they argue that
human trafficking encompasses the transport of human beings across borders for the purpose of
using them as slaves. They furthermore added that contemporary human trafficking can be found
in sex trade, coerce labor, extraction of body parts, and other forms of exploited labor or debt
bondage.
On the basis of these definitions we would like to ask who then are human
traffickers? Why do they purchase, whom, and for what purpose? As I review the various
literatures on the subject of human trafficking, I ask myself, why does human trafficking occur?
And who pays for all this? On the basis of the Palermo protocol, a Human trafficker is someone
who transports, harbors, exploits, and lures someone for either himself or to be transported to
someone else for a profit. Generally the motives for these transactions are money. Money is the
driving force that keeps the flames of this criminal offense burning like a wild fire. Since
trafficking involves criminal gangs, they avoid arrest by constantly moving victims from place to
place until he or she is completely warned off. Majority of victims are used in the sex tourism
industry, pornography, and brothels, as cheap labor (Pennington et al.2008: 4). Dunn (2007)
argues that the problem of human trafficking is growing at a faster rate annually. About 12.3
million people are trafficked every moment of the time. In 2001 for instance, about 45,000-
50,000 were trafficked in that year (ibid.). This suffices to underline that human trafficking is a
lucrative business, in which women and children are most vulnerable. Jahic (2009) examines the

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economic and social factors that are associated with human trafficking generally when he argues
that gender and demographic information plays a significant role in the recruitment process. His
analysis also examines the gender roles vis--vis the socio-economic status of victims mostly
trafficked.
This paper builds on the interpretation of the nature of human trafficking through
the economic lens of demand and supply in order to understand the operation of human
trafficking globally. Additionally, what I seek to do is to explicate and elucidate the rise of
human trafficking in the global market economy through the combinations of structural and
proximal factors as espoused by Cameron and Newman (2008). Cameron and Newman, departs
from the traditional notions of operational issues of dealing with the human trafficking, when
they argue on the intersectionality of the other factors they called structural and proximal
within the context of ecological locale. Cameron et al. (2008) have focused on the economic
aspect of human trafficking when they argued that structural factors such as social, economic,
political and cultural also fosters and sustains the business of human trafficking.
1.3 GLOBAL DIMENSIONS OF HUMAN TRAFFICKING
The forms of human trafficking are varied and to a large extent multifaceted in
dimension calling for an integrated approach. In most cases, the structural factors of human
trafficking are similar to one another such as the underlying economic and social context but in
the lager context its patterns are varied and depend on geographical and regional locations
(Cameron et al. 2008). Globally, an estimated 12.3 million people are enslaved (International
Labour Organization (ILO) 2005). Out of this number, an estimated 2.5 million people are in
forced labor (coerced prostitution and sexual exploitations). Out of the 2.5 million mentioned
above, an estimated 1.4 million people constituting approximately 56% of victims in forced labor
come from Asia and the pacific. 250,000, constituting about 10%, come from Latin America and
the Caribbean, 230,000 or 9.2% come from the Middle East and Northern Africa, 130,000 or
about 5.2% come from Sub Saharan Africa, 270,000 or about 10.8% are from industrial countries
such as the US and Western Europe. And 200,000 or about 8% come from countries in
transitions or weakened states plunged by conflicts At least about 161 countries are engaged in
human trafficking as source, transit and destination points According to the UNICEF child
trafficking information sheet 2003, an estimated 1.2 million children are trafficked each year.
The majority are between the ages of 18-24, out of whom an estimated 95% of these victims

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have experience physical or sexual violence while being trafficked. Out of this percentage, about
43% of victims are used for forced commercial sexual exploitation, the majority of whom
involves women and children. The US Department of state (2006) reports that the most common
forms of slavery are prostitution in advanced countries, constituting about 46%. 27% in domestic
servitude, 10% in agricultural and 5% in sweat shops.
Human trafficking today is a huge business generating huge profits annually.
2010, according to the international labor organization, an estimated $31.6 billion in profits was
accumulated through exploitation, either sexually or through coerced labor. Out this number,
about 15.5 billion, constituting about 49%, were generated in industrial countries.9.7 billion
About 30.6% were generated in Asia Pacific.1.3 billion or about 4.1% was for Latin America
and the Caribbean. 1.6 billion or about 5% were generated in Sub Saharan Africa, and 1.5 billion
or approximately 4.7% were generated in the Middle East (Besler 2005). Pennington et al. (2008:
2) have indicated that in Israel an enslaved prostitute could earn between $450-2,500 a day, if the
victim is working between 15-17 hours a day per week.
1.4 MARKET CONDITION
Human trafficking generally is organized around five participants. First, it
involves migrant victims who are trafficked and transported. Second, involves those who recruit
victims for transport, and in most cases take charge of finances by paying for all transportation
costs. Third, are buyers who claim ownership of possession of the victim. In most cases buyers
do not have any pre-existing relationships with the victim; hence the buyer may use force and
coercion to maintain compliance of the victim into submission. Fourth, are the enablers, those
who work behind the scenes either knowingly or unknowingly by assisting in facilitating the
movement of victims from one place to another. This is imminent in weakened developing
countries of Africa, Asia and South America, where human traffickers can beat the system
without getting caught. Fifth, consumers or buyers of sex prostitutes from pimps who offer
clientele services on hourly bases at the expense of the victim. Finally, NGOs who play a
significant role in rehabilitating victims (if they are ever recovered) from human trafficking
menace.
Pennington et al. (2008) mention that researching human trafficking can be very
difficult because of the nature and organization of human trafficking (clandestine operation). For
example, victims are usually hidden; as a result, identifying victims for assistance can be a

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daunting and extremely huge task, especially in determining sample population of victims. The
2005 US Department of State Report projected that human trafficking is one of the fastest
growing organized crimes after arms and drug trade. Human trafficking is profited by pimps
around the world and these numbers continue to increase in high proportions with demand for
the sexual exploitation of women. Along the border between Laos and Thailand for example,
many women have been sold into prostitution, and trafficked into Japan where they are held to
work for brothel services and massage shops for a period of time, and are usually disposed of
whenever a victim contracts a disease.
Bales argues that a huge majority of women and children were rescued in Italy
most of whom emigrated from Sub-Saharan Africa where they were recruited and promised
better job opportunities. Like many of the brothels and strip clubs in most advanced countries the
services of women are growing higher and higher. The need for exotic women in brothel places
and massage shops makes the demand for women and children from Eastern Europe to US and
Japan a very expensive commodity (Hughes2004). Bales (2005) demonstrate that the sale of sex
in Japan is of huge financial relevance. In 2001, the sex business in Japan generated a whopping
$20 billion in revenue, which is four times more than what Toyota will make. Furthermore, the
price for sex in most massage shops, also known as soapy shops, is between $300 and $500.
However, it was common to find sex on the street for as low as $8. The sex business in Japan is
part of Japans overall entertainment industry that employs a large number of young foreign
women from developing countries like Thailand and Nepal.
1.5 DEMAND SIDE OF HUMAN TRAFFICKING
In recent times there have been several types of demand for women for
commercial sex work and prostitution in the brothels. What drives the demand for women and
children for sexual labor in these sectors has come to be known as the pull and push factors
fuelling the sexual exploitation of women from mainly developing countries to more advanced
countries in Western Europe and North America. In most cases, many of these young girls are
recruited from less developed countries in promise of better job opportunities overseas. Upon
arrival abroad, victims passports and other valuable forms of identification are taken away, and
in most cases victims are abused into submission. In a conversation with a trafficked woman to
Japan, Bales found out;

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 Sri was approached by a woman she new from her province, who told her
about a well paid job opportunity in Thai restaurant in Japan. Sri decides to take up the offer
because her parents needed money for her younger brothers schooling. Sri applied for a passport
herself, but was called to an office to meet a boss who had many passports at hand and chose
one for her. She had silicon injections in her face to make her look more like the picture on the
passport. However, she barely carried the passport herself, entering Japan with a man posing as
her Japanese boyfriend, who took her passport after passing through immigration officers. Sri
believed the passport may have carried a visa for a Japanese spouse. At the airport in Japan, the
boyfriend rang another man who came to pick her up by a car, and took her to a bar where she
was told she had to repay a debt of 4.8 million Japanese Yen about $40,000 to cover the cost
involved in bringing her to Japan. (Bales 2007: 110)
In India, due to the caste system that has been practiced for several centuries, the
demand for people by higher social caste generates demand for services; hence, most rural
Indians are often demanded to work in farm fields as slaves usually termed debt bondage. In this
form of slavery the person is made to work for some time (many years in some cases) in order to
repay loans to the master. This repayment can usually extend to several generations of the
unborn, thereby making perpetual enslavement possible (Bales 2005). Bonded labor in India is
widespread due to the enormous poverty in the peripheral and remote parts of the country. As a
result, the need for agricultural labor in the areas where coffee and cotton productions are
concentrated generates demand for people to work under very painful conditions, and in some
cases very little compensation.
These are the circumstances in India that victims of debt bondage have been
going through for generations now. The question is what drives this business of bonded labor?
The simple underlying answer is poverty. Poverty is the most single fire that ignites the flame of
human trafficking globally. The demand for agricultural labor in the world is enormous
especially the demand for cheap labor in certain areas of agricultural production makes the
demand for human labor high. In Ivory Coast for example, Kielland (2008) argues how children
were being recruited to the cocoa farms in the Ivory Coast. A child in Mali according to Kielland
could be purchased for as low as $55. In the same vein, children in Ghana are engaged in cocoa
and palm oil production as well as in the mines.

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 The fishing industry in Ghana has also witnessed the recruitment of children for
offshore fishing. Children due to their light weight were often tied up with heavy loads in order
that they can sink to the bottom of the sea to pull and remove fishing nets and other gadgets. The
International Labor Organization points out that about 12 million children worldwide are
engaged in all forms of forced labor. Most of these children in many instances are hidden in our
societies to the benefit of criminals whose annual profits in 2009 were projected at $32 billion,
approximately $13,000 per person annually (Bales 2005).
In recent times the globalization of economy has also impelled corporations to
outsource business oversea in order to engage in the services for children and minors for the
purpose of exploitation. The company Nike for example outsourced their major productions to
Lebanon and Indonesia to engage the services of women for just a dollar a day for the production
of Nike products that are being sold for exorbitant prices in the US. This form of exploitation is
necessitated by money driven corporations who seek to make billions of dollars as quickly as
possible. Knowing the background of these material goods may help in the long run in avoiding
these corporations enslaving and exploiting the majority of the world impoverished women and
children.
In Mexico for instance, Victoria Secret has been named among the companies
employing cheap Mexican labor for the production of cosmetics products. This form of labor
exploitation is no different from earlier forms of slavery. Although modern forms of slavery at
least earn some wages, these wages are exploitative. For example, companies who hire foreign
workers take advantage of their situation by offering extremely low wages that will be
unacceptable in any developed country.
The nature of globalization has also exacerbated the demand for human
trafficking all over the world. Globalization with its inherent global technology has further
contributed to the enslavement and total exploitation of people across the worlds. Most of these
exploitations have usually gone unnoticed due to the subtle nature of their operation. For
example, the global technology has made it possible for technology based corporations in the US
to outsource its production services to India and the Philippines for cheap labor. Notably, the
customer service industry for instance has been outsourced to India where very low wages are
paid. The overall result is exploitation of the people. One may argue that these corporations are

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offering jobs, but the point is that human trafficking involves exploitation if the purpose of
engagement is to the benefit of the one who engages the other in the services.
Globalization technology has also increased the services of sex workers all over
the world. The demand for client services in the sex industries in many developed countries in
Western Europe and North America ,have increased as a result of technology. Today Asian girls
constitute the majority of women and children trafficked annually. According to the United
Nations Initiative to Fight Human Trafficking an estimated 2.4 million people are forced in
labor. Out of this number about 1.4 million people or about 56% come from Asia and the Pacific.
The majorities come from developing countries and are trafficked for sexual exploitation,
especially with the emerging global technologies such as the internet and web resources. The
wide spread of the internet and webcams has facilitated trafficking for sexual purposes.
Bales (2005) agues that majority of sex workers in Japan come from Thailand and
Laos as well as China and its surrounding. Clients for these women and children often back their
demand by force in the destination countries. In the foreign country, these women and children
are packaged (haircuts, clothes) in order to attract clients who demand these girls for sex
purposes. Bales also argues that like many consumer products, human beings trafficked for
sexual exploitation are managed and branded to meet the expectations of their clients. Clients
and pimps are the ones who buy and sell these girls for a period of time and then dispose of them
when they are no longer productive or contract a disease. Women and children in most cases are
the ones usually sold several times for prostitution by bouncing from one pimp to the other until
they are being disposed of.
1.6 SUPPLY SIDE TRAFFICKING
On the supply side, Bales (1999) argues that social, economic as well as political
realities in the source countries make the trafficking in person easy. Newman (2008) et al
demonstrate that both structural and proximal factors in the home countries have contributed
in fostering the movement of people from the source, to the destination countries. As already
noted on the demand side, the supply side for example involves in most cases the movement of
people from their countries or places of origin often plagued with several social, economic,
political as well as cultural factors that make the victims to the advanced countries vulnerable.
In the social context, Newman (2008) et al. argue that most of the victims are
driven into human trafficking because of the promise of better jobs and better social amenities in

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the intended destinations. The Ibos of Eastern Nigeria in Akwa Ibom State for example have
become a source for traffickers to recruit women in search of better conditions of life to work as
sex slaves in Europe. In this community, the promise of wealth by traffickers is used to entice the
youth of the area to migrate to Italy where majority of Nigerians have been identified and
rescued by anti-human trafficking groups (Fox croft 2009). The social milieu in this context of
creating a supply of human trafficking is quite different from the historical practice of slavery.
Although the forms are similar such as the involvement of some form of social relationship
between the exploiter and the exploited in the old form of slavery, this relationship is often
marked by violence, the use of force of threat of the use of force in order to maintain and
subjugate the victim. While the social context in most developing countries usually involves a
high degree of ignorance, Killeand (2008) argues that social boredom impels Malian youth to
travel to Ivory Coast in search of work on cocoa farms.
Economic factors are the most relevant factor that fosters human trafficking
generally. In fact the economic drive of human trafficking is double edged and plays out in both
the demand and supply side of the human trafficking problem. From the supply side in which
victims are uprooted to participate in human trafficking are usually from countries where poverty
is wide-spread. Poverty in most developing countries of Africa and South East Asia as well as
Eastern Europe exacerbates living conditions of people thereby making victims vulnerable to
traffickers.
Another factor that is linked to the poverty of these countries is unemployment.
One cannot rule out the fact that unemployment to a large extent contributes to poverty of
developing countries. Since the disintegration of the former Soviet Union, many east European
countries have not been able to recover economically. This is evident in the recent upsurge of
unemployment rates in Poland, Latvia, and Bulgaria and Romanian economies. With the global
economic crisis of the day, many nations have rolled back their economies due to the global
economic crunch, and the result is massive unemployment among the youth. In Ghana and
Nigeria, where the youth constitute about 50% of the populations, it is not uncommon to find that
these men and women will seek avenues for potential employment elsewhere (ILO 2005 Report).
As a result, human traffickers will use any means necessary to lure and entice
people into trafficking. The biggest problem driving the supply side of the human trafficking
problem is the vulnerability. If people are not vulnerable to be lured, then trafficking is not

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possible. In buttressing this point Bales (2000) argues on the places where recruitment usually
occurs and concludes that poverty and unemployment not only cause human trafficking in
essence, but foster it.
Conflicts in sub-Saharan Africa and in some parts of Asia have been exploited by
human trafficking gangs. Liberia and Sierra Leone for example, where conflicts have hit in the
last decades, have impelled their population to move away from the conflict zones while others
have been smuggled by human traffickers to other areas where they can work as prostitutes.
Conflicts for that matter create conditions possible for traffickers to recruit and transport people
usually with the false intentions of disembarking in a safe location with promises of job
opportunities.
In the case of Ghana, for instance, most prostitution arrests have been young
women from trouble and conflict countries, who due to lack of job skills are unable to secure
jobs in the labor market, but informally working as prostitutes in the slums of Accra for pimps
and criminal organizations. Organized crime such as prostitution in Ghana is on the rise with
police cracking down pimps on a daily basis, especially cases involving transportation of women
in children across states and regions.
Children from destitute families have also been the most vulnerable to the supply
of the human trafficking problem. Bales points to the case in Mauritania where children are
recruited to beg on principal streets with containers for coins they make and send to their
masters. These beggars barely make any three square meals a day, but their masters ensure their
welfare and upkeep so long as they go out to beg daily. Destitute families are found almost
everywhere in developing countries such as India and Africa as well as South America.
Hughes (2004) points out that the inability of government to beef up security
measures to detect, suppress and control the activities of human trafficking escalates the
problem. As an organized crime, it is common that many of these traffickers will hide under the
cover of the law to engage in their nefarious activities. In the countries where human trafficking
cases are increasing, national governments are often broken loose making it possible to recruit
and transport victims, hence the supply and sale of human beings for labor exploitations. The
legal evasion by traffickers also makes the smuggling of people to develop and advance
countries easy and less difficult to detect. The Mexican and the US border for example comprises

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several illegal border crossings into the US. Organized criminals smuggle people illegally to
their clients in the major cities in the US for sexual exploitation in the brothels.
Corrupt governments in developing countries have also broken loose making it
easy for traffickers to be able to supply their pimps with trafficking victims. In Africa, especially
sub-Saharan Africa where corrupt political leaders can be easily manipulated it is difficult if not
impossible to prosecute traffickers engaged in human trafficking. In some cases because of this
loose legal attitude, traffickers have concentrated in some developing countries to supply women
and children abroad for traffickers in Western Europe and the US.
Weakening of states and the collapse of the Soviet Bloc into independent nations
in the 1990s led to a period of economic stagnation in Eastern Europe. The United States
Department of State categorizes these Eastern European countries as some of the biggest
suppliers of victims of human trafficking to Western Europe for prostitution and sexual
exploitation. This classification by the Department of State is no doubt linked to the stalled and
weakened economic growth in these countries in the 1990s (Freeman 2008).
Economic contractions due to capital and credit crunch in the last couple of years
has affected the financial market in the United States and has trickled down to other powerful
economies like Japan and China leading to a global economic crisis. The crisis has affected
economic progress in developing countries and forced government and local state agencies to lay
off workers in the industrial sector leading to unemployment (Whitney 2010). While the
unemployment numbers are soaring globally, its relationship with human trafficking cannot be
ruled out. As organized criminals, traffickers are able to assess countries economic profiles and
where people can be vulnerable due to the lack of jobs caused by economic crisis of the twenty-
first century.

Whitney (2010) furthermore argues that the financial market has stripped off up to
$13 trillion in equities from hard working families and the working poor. Furthermore,
disposable income plummeted for the first time since the 1990s with little or no money to
purchase essential commodities. Why is this important to traffickers? Traffickers strive on
vulnerable economic conditions. This point is also consistent with de-industrializations and the
adoption of structural adjustments policies by countries attempting to reverse their economies,

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e.g. African countries structural adjustment policies in the 1980s, and their concomitant
repercussions on economic growth.
1.7 DOMESTIC TRAFFICKING
After arms and drug trade, human trafficking is the third largest organized crime
on an a global scale, mostly working from developing to developed countries (ILO Report 2005).
However, there also is a considerable degree of trafficking that is neither global nor international.
Domestic human trafficking refers to the internal forms of human trafficking in a society or
country. While countries differ from one another in terms of size and development, the problems
associated with human trafficking in these regions remain the same. The most common problems
are: cultural trafficking, religious trafficking, child soldiers, pawning and debt bondage,
agricultural and forced labor, cultism and forced marriages (Bales 2004).
1.8 CULTURAL TRAFFICKING
If culture is a way of life and a way of doing things as traditional anthropologists
such as Malinowski and Evans-Pritchard believe, then surely the victims of human trafficking
have their way of life. Victims of human trafficking are striped off their beliefs, traditions and
cultural practices and forced to adopt the life of the oppressor. The lost of ones freedom and
sense of judgment are taken away reducing victims to a hewer of wood and a drawer of water.
If a victim is taken away to a foreign country he or she has to adapt to new ways of life such as
new food, language, cloths etc in certain cases victims from certain regions of the world are
given haircuts or hair styles in order to blend in the host country, Bales (2005) called these
adaptations the unique selling point (USP). The main point here is that some cultures condone
and connive with cultural practices of the people to enslave its own. The Trokosis in Ghana for
example, is a case in point, where parents send their young daughters to fetish priests to atone for
their evils in the society.
These girls ranging between 10 and 30 years old live and serve the priest. And in
some cases these young women have been raped by priests resulting in unwanted children (Fox
croft 2009). This kind of practice in the name of culture has no moral basis in our society, and
therefore violates the fundamental human rights and freedom. Under forced marriages or
betrothals, many sub Saharan societies in northern Ghana allow women to be forced in to
unwanted marriages. Among the Komkombas in Ghana for example, men tend to bid for unborn
babies should that baby turn out to be a girl. This cultural practice not only deprives human

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dignity, but also undermines the human rights of innocent babies in the hands of traffickers of
young children in the society.
In the case of marriages, a woman is given out for marriage, if she is deemed
ready and has reached puberty. Women under this practice usually cannot resist, but simply
comply with any decisions that arrive until the final marriage rites are concluded. The question
one ought to ask is if trafficking is defined in some cases as the use of force and coercion, what
then are forced or arranged marriages? Other areas in sub Saharan Africa, where coerced
marriages were practiced include Benin and Togo, where it is often shrouded under the Voodoo
practice .Like the cultural cases of the Trokosis of Ghana, the Voodoo of Benin and Togo are
often quite similar, except that women live under different cultures and entirely separate
societies. The Voodoo priests are also known to be very influential members in the society and
are often consulted for various reasons, including issues of barrenness and infertility.
1.9 RELIGIOUS TRAFFICKING
In Northern Nigeria, for example, the Tijaniya, branch of the Shia Muslim sect in
sub-Saharan Africa, recruits young children for religious and training purpose. The child
exploitation and protection center working in northern Nigeria argue that children between the
ages of six and ten are recruited to serve particular Imams or noble sheikhs for the purpose of
religious and moral guidance and counseling.
These children are usually prevailed upon to go and beg with empty cans and
bottles on principal streets for several hours a day and send the proceeds to their Sheikhs or
Imams. This incidence of forced labor is no doubt an astonishing one, making these children
vulnerable on the streets where they are often taken advantage of by traffickers who promise to
offer them more money. Again, while these children are said to be undergoing moral and
religious training, their Imam also make them read the Quran as well as perform other menial
labor for the Imam, who is said to be the guardian and religious leader in the community.
1.10 PAWN OR DEBT BONDAGE
Pawning or debt bondage, a common practice among indigenous cultures in
Africa and India forms part of the heinous human trafficking problem in contemporary slavery
(Bales 2004). This practice violates the most basic human rights of victims. For instance, the
practice involves the use of children as instruments of legal tender in order to pay off debt. In
this case, the victim is made to pay off debt by working for a debtor in various forms, until such

15
a time that the debt was paid off. The most common areas where pawning and debt bondage
were still being practiced include Northern Nigeria, the Volta region of Ghana and the Wolof in
Senegal. In Ghana for example, the practice of pawning and debt bondage is common in the
societies, especially in the Northern parts of Ghana among the Tallensi communities and parts of
the sub Saharan societies (Bales 2004). Therefore, the practice of pawning or debt bondage of
human beings violates their natural and human rights.
1.11 LABOUR TRAFFICKING
Agricultural is one of the main sources of livelihoods for many African states,
consequently, as the demand for agricultural labor goes up in the farming seasons, the need for
people to labor on the plantation rises. The need for labor in the agricultural sectors also fuels the
trafficking of human beings. In Ghanas middle belt for example, where cocoa was widely
cultivated and grown in large scale for both domestic and for export, intensive labor mining and
cultivation meant high labor demands and the need to recruit labor whenever possible. For
example, abandoned children on Akwa Ibom streets in Nigeria are often targets for recruitment
in the agricultural labor. In Akwa Ibom State, whenever a child was perceived to be a witch or a
wizard, he or she was abandoned on the streets, and becomes vulnerable to traffickers who
recruit these children to work in the agricultural and mining industry. The Gambaga districts
harbors an estimated 1000 alleged witches who have been held and placed in refugee camps
condemned as witches without any opportunity of redress. This is also consistent with the case of
Obuasi, a district in Ghana where gold mining is in abundance, and children were recruited to
galamsey in the gold reserves under extremely dangerous conditions.
1.12 CULTISM AND TRAFFICKING
The albinos in sub-Saharan Africa are often under attack, as a result, of the
demand for albino body parts. Criminal gangs in Tanzania for example, seek albinos for ritual
purposes. Albino body parts in Tanzania are used as the main source of ritual wealth for people
who want to be wealthy (Carling 2008). This practice is rampant in Tanzania and Burundi, where
Albinos find it difficult to come to terms with their predators as they fall under the mercy of their
killers. In Burundi, also in many parts of Eastern Africa, there is a belief that an HIV patient can
be cured by having sex with an albino woman (Chang et al. 2009). The blatant denial of civil and
religious rights of albinos has been condemned by many groups as barbaric and primitive. In

16
Tanzania, for instance, many albinos are living in fear without hope on who could easily attack
them for ritual purposes (ibid.).
Another reason for the high demand in albino body parts in eastern Africa is
attributed to the use by witchdoctors who often used these body parts for various purposes and
for trafficking among their cohorts (witchdoctors). The trafficking in albinos has also been traced
to Nigeria among the Ibos for example, who uses the body parts of albino for rituals (Carling
2008).These rituals again serve various purposes such as for wealth, infertility, madness, luck,
and drunkenness. These incident of and violent killing of albinos are no doubt organized crime of
trafficking in person for ritual and religious purposes (Chang et al. 2009). Their human rights are
violated and legislation is needed to curtail this practice.
1.13 TRAFFICKING IN CHILD SOLDIERS
Trafficking in child soldiers is another means in which sub-Saharan societies are
vulnerable to human trafficking. The conflicts in Rwanda, and Burundi, between the Hutus and
the Tutsis have had a devastating effect on the continent. In Liberia and sierra Leon, for example,
young men and women becomes target for recruitment by trafficking. This is done by luring
victims of a promise land of safety and peace and sometimes a promise of jobs for a potential
restart of life. An example of this type of recruitment is the earthquake disaster in Haiti, where a
number of children between ages of 5 and 15 were smuggled out Haiti to Dominican Republic.
Again, in the Liberian civil wars in the early 1990s, many children were recruited by militia men
usually against their will to engage in armed battle with Para-militia men in combat cases. In the
case of Sierra Leone, children were recruited against their will participate in combat zones to
commit brutal acts of war led by militant forces, to resist government controlled areas in Free
Town (Beah 2008). Many of these children butchered their captives of war and asked whether
they wanted short or long sleeves. This meant whether or not one wanted either the wrist or the
arm cut off. In this trafficking form, children engage in combat against their will, often without
any knowledge of understanding why they fight.
1.14 RELATIONSHIP BETWEEN HUMAN RIGHTS & HUMAN
TRAFFICKING
The links between human rights and the fight against trafficking are well
established. From its earliest days to the present, human rights law has unequivocally proclaimed
the fundamental immorality and unlawfulness of one person appropriating the legal personality,

17
labour or humanity of another. Human rights law has prohibited discrimination on the basis of
race and sex; it has demanded equal or at least certain key rights for non-citizens; it has decried
and outlawed arbitrary detention, forced labour, debt bondage, forced marriage, and the sexual
exploitation of children and women; and it has championed freedom of movement and the right
to leave and return to ones own country.
1.15 Human rights most relevant to trafficking
(I) The prohibition of discrimination on the basis of race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth, or other status
(II) The right to life;
(a) The right to liberty and security
(b) The right not to be submitted to slavery, servitude, forced labour or bonded labour
(c) The right not to be subjected to torture and/or cruel, inhuman, degrading treatment or
punishment
(d) The right to be free from gendered violence
(e) The right to freedom of association
(f) The right to freedom of movement
(g) The right to the highest attainable standard of physical and mental health
(h) The right to just and favourable conditions of work
(i) The right to an adequate standard of living
(j) The right to social security
(k) The right of children to special protection.
Different human rights will be relevant at different points in the
trafficking cycle. Some will be especially relevant to the causes of trafficking (for example, the
right to an adequate standard of living); others to the actual process of trafficking (for example,
the right to be free from slavery); and still others to the response to trafficking (for example, the
right of suspects to a fair trial). Some rights are broadly applicable to each of these aspects.
1.16 Trafficking as a violation of human rights
As noted above, many of the practices associated with modern-day trafficking are
clearly prohibited under international human rights law. For instance, human rights law forbids
debt bondage: the pledging of personal services as security for a debt where the value of those
services is not applied towards the liquidation of the debt or their length or nature is not limited

18
and defined. Many trafficked persons who enter into a debt with their exploiters (relating to, for
example, placement or transport fees) find themselves in a situation of debt bondage; the debt is
used as a means of controlling and exploiting them. Human rights law also prohibits forced
labour, defined by Convention No. 291 concerning Forced or Compulsory Labour of the
International Labour Organization (ILO) as: all work or service which is exacted from any
person under the menace of any penalty and for which the said person has not offered himself
[herself] voluntarily. Slavery, servitude, child sexual exploitation, forced marriage, servile
forms of marriage, child marriage, enforced prostitution and the exploitation of prostitution are
also trafficking-related practices that are prohibited under international human rights law. Does
international human rights law actually prohibit trafficking in persons as opposed to
practices associated with trafficking such as those listed above? This is an important question
because it can have an impact on the nature of a States obligations and responsibilities. Only
two of the major human rights treatiesthe Convention on the Elimination of All Forms of
Discrimination against Women (art. 6)2 and the Convention on the Rights of the Child (art.
35)3contain substantive reference to trafficking. However, over the past decade a general
agreement has emerged within the international community that trafficking itself is a serious
violation of human rights. For example, both the Council of Europes Convention on Action
against Trafficking in Human Beings and the European Union Directive on preventing and
combating trafficking in human beings and protecting its victims identify trafficking as a
violation of human rights. The United Nations General Assembly and the Human Rights Council
have repeatedly affirmed that trafficking violates and impairs fundamental human rights, as have
many of the international human rights mechanisms.
1.17 The human rights of trafficked person
Both the Charter of the United Nations and the Universal Declaration of Human
Rights confirm that rights are universal: they apply to everyone, irrespective of their race, sex,
ethnic origin or other distinction. Trafficked persons are entitled to the full range of human
rights. Even if they are outside their country of residence, international law is clear that
trafficked persons cannot be discriminated against simply because they are non-nationals. In
other words, with only some narrow exceptions that must be reasonably justifiable, international
1
Information taken from U N Convention Charter
2
Information taken from U N Convention Charter
3
Information taken from U N Convention Charter

19
human rights law applies to everyone within a States territory or jurisdiction, regardless of
nationality or citizenship and of how they came to be within the territory.
International human rights law recognizes that certain groups require additional
or special protection. This may be because of past discrimination or because their members share
particular vulnerabilities. In the context of trafficking, relevant groups include women, children,
migrants and migrant workers, refugees and asylum seekers, internally displaced persons, and
persons with disabilities. Sometimes, members of a group will be specifically targeted for
trafficking. Children, for example, may be trafficked for purposes related to their age such as
sexual exploitation, various forms of forced labour and begging. Persons with disabilities can
also be targeted for certain forms of exploitative labour and begging. Women and girls are
trafficked into gender-specific situations of exploitation such as exploitative prostitution and sex
tourism, and forced labour in domestic and service industries. They also suffer gender-specific
forms of harm and consequences of being trafficked (for example, rape, forced marriage,
unwanted or forced pregnancy, forced termination of pregnancy, and sexually transmitted
diseases, including HIV/AIDS).
Individuals belonging to specific groups who are subject to trafficking may
be in a position to claim different or additional rights. For example, international human rights
law imposes important and additional responsibilities on States when it comes to identifying
child victims of trafficking as well as to ensuring their immediate and longer-term safety and
well-being. The core rule is derived from the obligations contained in the Convention on the
Rights of the Child: the best interests of the child are to be at all times paramount. In other
words, States cannot prioritize other considerations, such as those related to immigration control
or public order, over the best interests of the child victim of trafficking. In addition, because of
the applicability of the Convention to all children under the jurisdiction or control of a State,
non-citizen child victims of trafficking are entitled to the same protection as nationals in all
matters, including those related to the protection of their privacy and physical and moral
integrity. Other treaties may further specify these rights. For example, the Trafficking Protocol
requires certain special measures with regard to child victims, as does the Convention on Action
against Trafficking in Human Beings.
1.18 The importance of a human rights-based approach to trafficking

20
 While the link between human rights and human trafficking is clear, it does not
necessarily follow that human rights will naturally be at the centre of responses to trafficking.
For example, cross-border trafficking can be dealt with as an immigration issue, with human
rights being addressed only as an afterthought. It is also possible for States to address trafficking
primarily as a matter of crime or public order. Over the past decade, an international consensus
has developed around the need for a rights-based approach to trafficking. The General Assembly
and the Human Rights Council, for example, have both advocated such an approach, as have
many relevant human rights mechanisms, including special procedures and treaty bodies.
What does it mean, in practical terms, to take a human rights-based approach
to trafficking? A human rights-based approach is a conceptual framework for dealing with a
phenomenon such as trafficking that is normatively based on international human rights
standards and that is operationally directed to promoting and protecting human rights. Such an
approach requires analysis of the ways in which human rights violations arise throughout the
trafficking cycle, as well as of States obligations under international human rights law. It seeks
to both identify and redress the discriminatory practices and unjust distribution of power that
underlie trafficking, that maintain impunity for traffickers and that deny justice to their victims.
Under a human rights-based approach, every aspect of the national, regional
and international response to trafficking is anchored in the rights and obligations established by
international human rights law. The lessons learned in developing and applying a human rights-
based approach in other areas, such as development, provide important insights into the main
features of the approach and how it could be applied to trafficking. The key points that can be
drawn from these experiences are:
(A) As policies and programmes are formulated, their main objective should be to promote and
protect rights;
(B) A human rights-based approach identifies rights holders (for example, trafficked persons,
individuals at risk of being trafficked, individuals accused or convicted of trafficking-related
offences), their entitlements and the corresponding duty bearers (usually States) and their
obligations. This approach works towards strengthening the capacities of rights holders to secure
their rights and of duty bearers to meet their obligations; and

21
(C) Core principles and standards derived from international human rights law (such as equality
and non-discrimination, universality of all rights, and the rule of law) should guide all aspects of
the response at all stages.
The following sections show clearly how recent developments at the
international, regional and national levels have helped to clarify what a rights based approach to
trafficking means in practice.
1.19 TRAFFICKING AND ROLE OF UNITED NATION
Moreover, cooperate with the work of other international organizations, and
develop strategies with them, as to profit from the comparative advantage of each organization.
In particular, the ILO has devoted important efforts to standard-setting, monitoring and technical
assistance. Something similar happens with other institutions of the UN system and specialized
organizations such as the WHO, the IOM, the UNHCR,UNICEF,UNIFEM,INSTRAW,UNITAR
and the UNFPA in their particular fields of action. International and regional human rights
mechanisms play, in addition, an important role, for the periodic monitoring of State activities,
plus the analysis of individual petitions or cases, before an international body or a court. In their
particular fields of action. International and regional human rights mechanisms play, in addition,
an important role, for the periodic monitoring of State activities, plus the analysis of individual
petitions or cases, before an international body or a court.
However, the international momentum consists of the implementation of the
Palermo Trafficking Protocol, particularly, international criminal cooperation and counter-
trafficking. The UNODC Global Programme against Trafficking in Human Beings (GPAT)
assists countries to combat trafficking, with focus on the criminal justice element. UNODC
offers technical assistance and practical help to States in drafting laws and comprehensive
national anti-trafficking legislation, including practical tools to encourage cross-border
cooperation in investigations and prosecutions, and training for law enforcement officials on
investigating and prosecuting trafficking cases, victim and witness protection. This includes
assistance in carrying out awareness-raising campaigns and other preventive measures. UNCIPC
has organized an expert meeting to develop of a legislation guide to implement the Palermo
treaties. It gives technical assistance under its Global Programme against Trafficking in Human
Beings, in cooperation with the United Nations Interregional Crime and Justice Research
Institute.

22
 The Centre counts with a database on global trends cross national routes, and the
volume of trafficking in persons and smuggling of migrants, as well as data on victims and
offenders of trafficking, and on responses of criminal justice systems to this criminal activity.
CICP is preparing a tool kit on promising practices against trafficking in persons. INTERPOL
has also been very active in this field. In March 2007, UNODC formally launched a Global
Initiative to fight Human Trafficking (UN.GIFT).
The role of economic development and prevention appears not to have received
the same attention, except, particularly, in the work of the OSCE, which is geographically
limited. The World Bank could analyze how to produce strategic impact in these fields. Many
civil society groups are calling the attention on the need to intervene to prevent trafficking and
other contemporary slave-like practices. The same has happened with regional and supranational
organizations, perhaps with the most important exception, as already indicated, of the OSCE,
with engagement not only in counter-trafficking, but also in research on root causes, networks
and economic consequences of trafficking.
The IOM has also developed important research activity. In addition, the ADB
has been working, as a development Bank, in the field of trafficking. The experience is useful,
coming from a development institution, though we should underline that the concept of
trafficking applied is different to the one of the Palermo Trafficking Protocol, see supra. The
ADB has prepared a guide for integrating trafficking concerns into ADB Operations entitled
Combating Trafficking of Women And Children In South Asia
The Guidelines target those most vulnerable to trafficking, especially women and
children, and recommend to assess the impacts of ADB operations to take up opportunities to
prevent, minimize, and mitigate development-induced risks; to rebuild social and human capital
among mobile (or potentially mobile) populations through emergency loans and assistance in
post conflict reconstruction; to encourage safe migration through, for example, incorporating
safe migration messages in social mobilization components of ADB-supported projects in source
areas, ensuring that migrants have access to basic needs such as shelter in urban slum areas, and
extending benefits of social protection to mobile populations; and to stem demand for trafficked
labor, especially in the informal sector and among small and medium enterprises. These concerns
are addressed through mainstreaming trafficking concerns into all levels of ADB operations

23
including regional and sub regional cooperation, country programming in most sectors, project
designs, and legal frameworks.
The focus countries are Nepal, India and Bangladesh. Some of the sectors
analyzed are agriculture, transportation, education, infrastructure, water supply and sanitation,
and social protection. The ADB has also adopted a commitment to core labor standards (CLS) as
part of its Social Protection Strategy in 2001, particularly in the design and implementation of its
investment projects. A Handbook has been developed together with the ILO Cooperation with
the ADB would be an important step as to develop further strategies.

24
 CHAPTER-2

INTERNATIONAL PERSPECTIVE ON HUMAN TRAFFICKING

INTRODUCTION
Human trafficking is a human phenomenon that has been and continues to be
practiced for centuries now. Like the global economic crisis, human trafficking is a global crisis
that is inextricably linked to the current move of globalization in the sex industries involving
women and children. Here, It will explore the dimensions of human trafficking by distinguishing
between different types of trafficking. The distinction is based on the interpretation of the
trafficked victim as a commodity. Thereby, several markets according to consumer needs can be
distinguished. I will explain these consumer needs and the supply chains aimed at satisfying
these needs. These chains have become increasingly globalized, which means that we have to
understand the issue in the framework of contemporary globalization and especially global
capitalism.4
2.1 DEFINITION OF HUMAN TRAFFICKING
Bales (2004) defines contemporary slavery as a social and economic relationship
in which a person is controlled through violence or paid nothing, and economically exploited. In
the old form of slavery, Africans were specifically transported to the New World based on their
race and specific capabilities. The new form of slavery goes beyond racial lines. As Bales argues,
both the new and old forms are characterized by violence used to maintain the slave. Not only is
violence used, but victims are subjugated and stripped of their free will. Slaves were often
marginalized and exploited by their slave master. In other words, black slaves could not buy their
freedom. Although a slave in this category could usually be enslaved for life, modern slavery
however, is transient and occasionally temporary. Bales assert that traffickers minimum hold-up
(period of captivity) is usually between three to six months, or longer, depending on the situation
and the circumstance.

4
United Nation Convention Against Transnational Organized Crime (2000)

25
 Today, human trafficking involves the movement of victims, usually women and
children, across borders legally or illegally. These victims may be either documented or without
documentation as they head into an unknown destination, and in most cases the person being
transported is unaware of the consequences thereof. And sometimes victims may be oblivious of
unintended consequences such as arrests and deportation while in transit to the new destination.
Many of the forms of human trafficking involve the movement of people from one place to
another often unknown to the victim. In many cases, this involves victims being lured by better
opportunities in the form of jobs elsewhere. Hoque (2010) argues that what clearly defines
human trafficking today is still unknown despite various definitions by international
governmental and nongovernmental organizations. Although slavery has been abolished for a
century now, the practice of slavery still exists albeit in different forms. In todays literature,
modern day slavery is human trafficking. Although most of the discussions on human trafficking
tend to focus on forcing and transporting women for labor and sexual exploitation, the majority
of modern day trafficking cases can be found in fact everywhere in our communities and
societies.
Until 2000 the definition of human trafficking was varied and reflected
geographical and regional locale. In order to consolidate these regional definitions, the United
Nation in 2000 promulgated the protocol to end human trafficking in the world. This protocol
which came into force in December 2003 seeks among others to suppress, punish, and to prevent
the trafficking of women and children worldwide. At the same time, the United Nation for the
first time defined human trafficking as the recruitment, transport, transfer, harboring, or receipt
of persons by means of the threat or use of force or other forms of coercion of abduction, of
fraud of deception of the abuse of power or of a position of vulnerability or of the giving or
receiving of payments or benefits to achieve the consent of a person having a control over
another person for the purposes of exploitation. Exploitation shall include at a minimum, the
exploitation of the prostitution of others or other forms of sexual exploitation, forced labor or
services, slavery or practices similar to slavery, servitude or the removal of organs. The consent
of a victim of trafficking in persons to the intended exploitation set forth (above) shall be
irrelevant where any of the means set forth (above) have been used.5

5
United Nation Convention Against Transnational Organized Crime (2000): Annex II,
Section Article 3, p.42-43

26
 This comprehensive definition of human trafficking not only sets off the goals and parameters
upon which nations can fight human trafficking, but also has been ratified by up to 117 nations
world wide. On the basis of these definitions, it can be discerned that human trafficking involves
the transport of individuals usually children male and female alike under deceptive
circumstances for the motive of profiting of their labor either internally or across borders. This
definition is also consistent with Pennington et al. (2008) when they argue that human trafficking
encompasses the transport of human beings across borders for the purpose of using them as
slaves. They furthermore added that contemporary human trafficking can be found in sex trade,
coerce labor, extraction of body parts, and other forms of exploited labor or debt bondage
(1) On the basis of these definitions you would like to ask who then are human traffickers?
(2) Why do they purchase, whom, and for what purpose?
(3) I ask myself, why does human trafficking occur?
(4) And who pays for all this?
On the basis of the Palermo protocol, a Human trafficker is someone who
transports, harbors, exploits, and lures someone for either himself or to be transported to
someone else for a profit. Generally the motives for these transactions are money. Money is the
driving force that keeps the flames of this criminal offense burning like a wild fire. Since
trafficking involves criminal gangs, they avoid arrest by constantly moving victims from place to
place until he or she is completely warned off. Majority of victims are used in the sex tourism
industry, pornography, and brothels, as cheap labor (Pennington et al.2008: 4). Dunn (2007)
argues that the problem of human trafficking is growing at a faster rate annually.
About 12.3 million people are trafficked every moment of the time. In
2001 for instance, about 45,000-50,000 were trafficked in that year (ibid.). This suffices to
underline that human trafficking is a lucrative business, in which women and children are most
vulnerable. Jahic (2009) examines the economic and social factors that are associated with
human trafficking generally when he argues that gender and demographic information plays a
significant role in the recruitment process. His analysis also examines the gender roles vis--vis
the socio-economic status of victims mostly trafficked.
2.2 SLAVERY, SLAVE-TRADE & INSTITUTIONS & PRACTICES
SIMILAR TO SLAVERY

27
 After many efforts, starting especially at the beginning of the 19th century, a
treaty was adopted in 1926 to eliminate slavery by imposing an obligation on each State to define
it as a crime. This paradigm prevails today in most instruments protecting persons from
contemporary forms of slavery.
Slavery is, in addition, proscribed by international human rights law,6 a
prohibition which is considered today customary international law, that is, the obligation is
binding for all the international community, including the World Bank. Slavery is the status or
condition of a person over whom any or all of the powers attaching to the right of ownership are
exercised.
The prohibition is normally linked to the prohibition of slave-trade, which is
forbidden independently of the means of conveyance. The 1956 Supplementary Convention on
the Abolition of Slavery (hereinafter Supplementary Convention) adds the criminalization of the
act of enslaving another person or of inducing another person to give himself or a person
dependent upon him into slavery or other servile status Consequently, there is no consensual
slavery under international law.
There is an evident overlap between slavery and the notion of forced labor,
infra, though the first notion is characterized by the concept of condition or status. Another
overlap exists with the Palermo Trafficking Protocol, which encompasses trafficking for slavery
purposes, as already mentioned. Finally, the ILO Convention on the Worst Forms of Child Labor
forbids child slavery, infra.
In addition to slavery, the Supplementary Convention forbids further practices similar to slavery

2.3 Bonded Labour (or debt bondage)

This is the status or condition arising from a pledge by a debtor of his personal
services or of those of a person under his control as security for a debt, if the value of those
services, as reasonably assessed, is not applied towards the liquidation of the debt or the length
and nature of those services are not respectively limited and defined. There is no debt bondage if

6
Article 4 of the Universal Declaration on Human Rights (hereinafter UDHR); Article 8.1 of the International
Covenant on Civil and Political Rights (hereinafter ICCPR); Article 4.1 of the European Convention on Human
Rights and Fundamental Freedoms (hereinafter ECHR); Article 6.1 of the American Convention on Human Rights
(hereinafter ACHR); Article 11.1 of the International Convention on the Protection of the Rights of All Migrant
Workers and Members of Their Families, Adopted by General Assembly resolution 45/158 of 18 December 1990,
Enters into force on 1 July 2003 (hereinafter ICMW). (report taken from website.)

28
the value of the services, reasonably assessed, is applied towards the liquidation of the debt, and
the nature of those services is limited and defined.
2.4 Serfdom
Servitude was identified for the first time in the Universal Declaration of Human
Rights (here in after UDHR)7 . Later the Supplementary Convention condemned servile status
together with slavery, including debt bondage, serfdom, not-free forms of marriage and child
labor8.
Serfdom is defined as the condition or status of a tenant who is by law,
custom or agreement bound to live and labor on land belonging to another person and to render
some determinate service to such other person, whether for reward or not, and is not free to
change his status; International human rights treaties also condemn servitude9. However, the
American Convention on Human Rights (hereinafter ACHR) refers only to involuntary
servitude, but in all its forms10. Serfdom also overlaps with forced labor, but implies, again, a
condition or status.
2.5 Exploitative marriages and further institutions implying the exploitation
of woman
The Supplementary Convention also covers: Any institution or practice whereby:

(i) A woman, without the right to refuse, is promised or given in marriage on payment of a
consideration in money or in kind to her parents, guardian, family or any other person or group;
or

7
Article 4 of the UDHR
8
Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to
Slavery, 226 U.N.T.S. 3, entered into force April 30, 1957
9 Article 8.2 of the ICCPR; Article 4.2 of the ECHR; Article 11.1 of the ICMW.
10 Article 6.1 of the ACHR

29
(ii) The husband of a woman, his family, or his clan, has the right to transfer her to another
person for value received or otherwise; or
(iii) A woman on the death of her husband is liable to be inherited by another person;
2.6 Child Exploitation
The same Supplementary Convention forbids any institution or practice whereby a child or
young person under the age of 18 years, is delivered by either or both of his natural parents or by
his guardian to another person, whether for reward or not, with a view to the exploitation of the
child or young person or of his labor.11
2.7 Forced labour
Under contract law, a free expression of will is required as to count with a valid
contract. A series of situations where consent is wicked are recognized, as they can originate the
invalidity of the contract, due to a formation defect, for instance, coercion.12 In addition, some
clauses may be prohibited by law, since they are considered as being in conflict with the notion
of public order of a given community.
Particularly in the field of labor law, the free will to contract has been
13
limited through legislation . Domestic rules normally recognize that parties to labor contracts
do not count with equal bargaining power. There are incentives for the party with more power to
take unfair advantage, or to exploit the weaker party, normally the worker. However, these
standards do vary from country to country. International labor standards and human rights rules
constitute a minimum set of norms which oblige States to adopt the necessary legislation to
implement them. Many countries follow these standards, as a starting point. However, even in
those cases, the lack of effective respect of these rules permits de facto the existence of different
instances of abuse. Liberalization of labor markets has sometimes originated the erosion of labor
standards.

11
Idem, Article 1 paragraph d.
12
See, for instance, Rick Bigwood, Coercion in Contract: The Theoretical Constructs of Duress, The University of
Toronto Law Journal, Vol. 46, No. 2, (Spring, 1996), pp. 201-271.
13
See David M. Trubek, Jim Mosher, Jeffrey S. Rothstein , Transnationalism in the Regulation of Labor Relations:
International Regimes and Transnational Advocacy Networks, Law & Social Inquiry, Vol. 25, No. 4, (Autumn,
2000), pp. 1187-1211, at 1190.

30
 Forced labor is currently present in almost all countries. The notion is defined
by the 1929 ILO Convention as All work or service which is exacted from any person under the
menace of any penalty and for which they said person has not offered himself voluntarily
As hinted above, this notion is included in most of the notions already
analyzed. This Convention was followed by the Abolition of Forced Labor Convention, 1957
(No. 105) that expanded the concept to forced labor:
(a) As a means of political coercion or education or as a punishment for holding or expressing
political views or views ideologically opposed to the established political, social or economic
system;
(b) As a method of mobilizing and using labor for purposes of economic development;
(c) As a means of labor discipline;
(d) As a punishment for having participated in strikes;
(e) As a means of racial, social, national or religious discrimination.
Forced labor is also forbidden by human rights law, and it does neither mean only
low wages or poor working conditions, nor cover situations of pure economic necessity It
comprises two elements: the work or service, exacted under the menace of a penalty that is
undertaken involuntarily. The penalty does not need to be a criminal sanction. The most extreme
form involves physical violence or restraint, or even death threats addressed to the victim or
relatives. Subtler forms can be psychological menaces, including threats to denounce the person
to the police or immigration authorities, if the employment status is not legal, or denunciation to
village elders, if girls are forced to prostitute themselves in distant cities. Penalties can also be
financial, such as those linked to a debt, non-payment of wages, loss of wages accompanied by
threats of dismissal, if workers refuse to do overtime beyond their contracts or in breach of
legislation. Moreover, from the ILO perspective, an activity does not need to be recognized
officially as an economic activity to fall within the ambit of forced labor. Forced labor is
included among the worst forms of child labor, as defined in the ILOs Worst Forms of Child
Labor Convention, 1999 (No. 182), infra. The notion of forced labor reveals some problems in
its implementation. Pursuant to the principle of free contracting, an individual should have the
right to enter into any contract, even non-favorable, as voluntariness is considered per se a
welfare improvement. International law recognizes rights to individuals born with dignity, liberty
and autonomy , that is, it follows basically this paradigm. On the other hand, reality shows that

31
workers can have limited information, live in situations plenty of constraints, possibly combined
with moral hazard on the part of employers. These factors could impair the expression of valid
and informed consent.
2.8 Political Factors
The end of the Cold War contributed to the rise of trafficking by increasing the
number and duration of intrastate and regional conflicts. These conflicts, as will be discussed
impoverished and displaced many. They eliminated families and communities, leaving
individuals vulnerable to traffickers. The post-Communist transitions were particularly hard on
women and children. With the collapse of the Communist political and economic systems, state-
guaranteed employment ended and the social safety net disappeared; the demise of these
supports was accelerated by an ideological commitment to eliminate all attributes of the
Communist system.
The corruption of long-term one-party rule led to highly corrupt law
enforcement and crime groups closely linked to the state. Impoverished women and children in
post-Communist countries from the Balkans to Vietnam became trafficking victims, as they
lacked protection from their governments and were vulnerable to powerful and venal
transnational crime groups.
2.9 Regional Conflicts and Trafficking
Since the early 1990s has produced devastating situations conducive to human
smuggling and diverse forms of trafficking. Millions of refugees resulting from these conflicts
are uprooted from their traditional societies with no viable means of support. Many are forced
into the abysmal conditions of refugee camps. Having lost their livestock and their traditional
lands, they are often dependent on the handouts of foreign aid organizations. Desperate and
disoriented, they are ready to leave their camps but lack the resources to move, making them ripe
for exploitation by traffickers. The more affluent in conflict regions pay smugglers to move them
and their children to safer countries trafficking victims. Therefore, trafficking compounds their
initial victimization.
Trafficking in men and women also provides financial support for regional
conflicts in Africa, Europe, Latin America, and Asia, as discussed in subsequent chapters on
specific regions. Children are trafficked in many regions to provide soldiers for rebel armies.
Peacekeeping missions increasingly deployed in the last two decades to police conflicts have all

32
too often exacerbated the problem of trafficking .These missions are large and expensive,
representing 25 percent of the UN budget and significant sums from other multilateral
organizations and individual nations. Numerous youthful male soldiers placed in dangerous
conditions far from their homelands, without adequate oversight, become ready customers for the
brothels filled with trafficked women that spring up as soon as peacekeepers arrive.
Many powerful journalistic investigations of abuse of trafficked women in the
Balkans focused attention on the linkage between peacekeeping and trafficking. These exposes
revealed that traffickers embed organized crime within the community. As a result, new policies
were developed by the U.S. Department of Defense, NATO, and the United Nations intended to
eliminate peacekeepers exploitation of trafficked women. The problem, however, persists
because enforcement of these policies has been sporadic and there has been an absence of
political will to address the problem.
2.10 Social Factors
Labor and sexual trafficking have grown in response to changing social conditions of recent
decades. Youthful populations have burgeoned in the developing world. Without capital and
adequate job growth, rural to urban migration has undermined traditional values as well-
established communities are destroyed, and long-standing discrimination against women, girls,
and minorities has been amplified by the global economy.
2.11 Demographic Factors14
Two important demographic forces have contributed to human trafficking are :-
(a) Population growth
(b) The increasing imbalance between the numbers of men and women in many countries.
In the last forty years, the worlds population has nearly doubled with the growth
confined almost entirely to the developing world. Unemployed or underemployed youth and
street children in the teeming cities of the third world are exploited by traffickers for labor and
sexual exploitation. In Asia, the epicenter of human trafficking, women represent less than50
percent of the population of China and all South Asian countries. In China, there are fewer
women than men because many female fetuses are aborted because of the one-child policy and
societys preference for males. In Asia, the epicenter of human trafficking, women represent less
than50 percent of the population of China and all South Asian countries. In China, there are
14
As per the report of United Nation

33
fewer women than men because many female fetuses are aborted because of the one-child policy
and societys preference for males. Other forces explain this discrepancy in Nepal, India,
Bangladesh and other South Asian countries. The negative sex ratio can be attributed to excess
mortality of women and girls resulting from both direct and indirect discrimination in the
provision of food, care, medical treatment, education, and above all physical and sexual
violence. In these countries, the gender imbalance is both a cause and a consequence of human
trafficking. Women are trafficked from other Asian countries as wives for Chinese men. In South
Asia, many trafficking victims die prematurely.

2.12 Gender and Ethnic Discrimination that Gives Rise to Trafficking

One scholar explained the recent growth of sex trafficking in South Asia,
Eurasia, and East Asia after the fall of the Berlin Wall in these terms, The particular ascension
of sex slavery resides at the intersection of the socioeconomic Bed lam promoted by economic
globalization and a historic, deeply rooted bias against females.15
Trafficking most frequently occurs in societies where women lack property
rights, cannot inherit land, and do not enjoy equal protection under the law. Yet trafficking also
occurs on a significant scale in Eurasia, where women have legal rights and access to education
but face discrimination in obtaining jobs, decent wages, and access to capital. During the 1990s,
many job advertisements in post-Soviet countries read only the young and the willing need
apply.16 This requirement forced women to provide sexual services in exchange for
employment.
In contrast, in many societies in Africa, Latin America, and parts of Asia, fewer
resources are provided for the education, medical care, or overall welfare of female children.
Females are the first to be pulled out of school in financial crises such as occurred in the late
1990s and again starting in 2008.

15
Kara, Sex Trafficking case in English law
16
Sally Stoecker, The Rise in Human Trafficking and the Role of Organized Crime,
Demokratizatsiya 8, no. 1 (Winter 2000), 12914; Donna Hughes, The Natasha
Trade: The Transnational Shadow Market of Trafficking in Women, Journal of
International Affairs 53 (Spring 2000), 62551; Sally Stoecker, Human Trafficking: A
New Challenge for Russia and the United States, in Human Traffic and Transnational
Crime, 1328 (available on web site).

34
 As a consequence, female children have fewer options. Frequently, girls and
women can obtain employment only in sectors where they are most vulnerable to labor and
sexual exploitation, including as domestic servants, carpet weavers, and child care providers In
some countries, the route to prostitution is more direct as girls are viewed as a means for a
familys economic advancement17. Trafficking their daughters is one way that Southeast Asian
families generate funds to make capital improvements to their home and their land.18
Women of minority groups or low castes face even more intense
discrimination. Prostitution in South Asia is not primarily a criminal issue, but a social problem
caused by extreme underdevelopment and caste discrimination in a strictly hierarchical society.
In Asia, the most vivid example of ethnic discrimination linked to trafficking
is the Hill Tribes of Northern Thailand. Stateless and lacking Thai citizenship, they are not
granted access to social services, education, or state employment. Compounding their problems
is the fact that crop substitution programs introduced in Northern Thailand have failed to provide
the income once gained from the cultivation of poppy. Daughters are often sold into prostitution
because families cannot survive through legitimate means.
The relationship between discrimination and trafficking is not confined to
Asia. Traffickers in Europe also exploit the vulnerability of ethnic and racial minorities. A
disproportionate number of the women and minors trafficked from Moldova, an epicenter of
European trafficking, are members of the Gagauz and Roma minorities. The Gagauz are a Turkic
population, and the Roma in Moldova, as elsewhere, are still subject to intense discrimination
and are disproportionately victims of trafficking.
2.13 Public Health Causes
The state of public health contributes directly and indirectly to human
trafficking. The demographic boom in the developing world, mentioned previously, is a direct
result of the control of many of the most deadly contagious diseases. Public health issues
contribute to trafficking in more direct ways as well. The most notable impact on trafficking
comes from the AIDS epidemic, but increased rates of violence and rising health costs also
contribute to increased levels of trafficking.

17
Asian Development Bank, Combating Trafficking of Women and Children, 15.(from website)
18
Interviews with human trafficking specialists in Thailand by author in 1998.(from website)

35
 When a family cannot raise the money for medical care and medicines, female
family members are sometimes trafficked. In the documentary Sex Slaves, a young woman from
Ukraine is trafficked into prostitution with the hope of earning money to pay for the medical care
of a brother suffering from cancer related to the Chernobyl explosion19. In the Mekong region of
Southeast Asia, girls are sold to traffickers for a defined period of time to provide money for the
health care of more senior family members.20
Public health problems such as familial violence and sexual abuse of young
girls increase susceptibility to trafficking. As previously mentioned, these phenomena have
become more frequent in recent decades with the displacements caused by regional conflicts and
rural to urban migrations. The traumatic early transition years in the Soviet successor states were
also noted by higher rates of familial violence, often directed at women and female children. In
the United States, abused American children provide a significant percentage of juvenile
trafficking victims. In many countries of North Africa and the Middle East, child prostitutes are
seen as public goods and are subject to physical violence21. The Brutalization of the girl in all
societies is often a prelude to the trafficking that follows22.
The proliferation of HIV-AIDS has contributed in diverse ways to trafficking.
Ironically, although the scourge of AIDS should have led to a decline in trafficking and use of
prostitutes, the reverse has occurred. The large numbers of untreated AIDS victims in the
developing world has produced many orphans or children with ill or single parents. The social
stigma attached to AIDS has made many of these children pariahs within their communities.
Children with no healthy family members to support them are ostracized within their
communities, increasing their vulnerability to traffickers.
The increasing problem of intergenerational prostitution has developed as a
result of the spread of AIDS. Trafficked women who die of AIDS often leave behind young
children. Orphaned without any contact with living family members, these children are

19
Sex Slaves Frontline documentary, http://www.pbs.org/wgbh/pages/frontline/slaves
(accessed June 25, 2007).(visited on 16/02/2017)
20
Economic and Social Commission for Asia and the Pacific, Sexually Abused and Sexually
Exploited Children and Youth in the Greater Mekong Subregion.(website report)
21
Susanne Louis B. Mikhail, Child Marriage and Child Prostitution: Two Forms of Sexual
Exploitation, in Gender, Trafficking and Slavery, Rachel Masika, ed. (Oxford: Oxfam,
2002),(report taken from website)
22
Melissa Farley, Prostitution, Trafficking, and Cultural Amnesia: What We Must Not
Know in Order to Keep the Business of Sexual Exploitation Running Smoothly, Yale
Journal of Law and Feminism 18 (2006), 10136.(report taken from website)

36
dependent on brothel keepers for their support. Often the brothel keepers maintain the girls and
then prostitute them even younger than the age of ten.23 The sexual slavery of the mother
therefore continues on to the succeeding generation .This is particularly common in the brothels
of India but is by no means unique to that society.
The spread of AIDS has also contributed to the demand for younger victims, as
many customers believe that younger victims are less likely to be carriers of the infection.
The search for younger victims exacerbates the spread of the disease and
compounds the probability of youthful victimization. Young trafficked girls are particularly
vulnerable to lesions during sexual relations, thereby making them more likely to contract
venereal diseases and AIDS.24
As their symptoms become visible, they are no longer able to serve clients.
Therefore, the brothel keepers need to continuously search for new girls to restock their brothels.
As a consequence, in Asia trafficking is now extending into regions that previously had been
untouched by the problem. These are the some of the major factors of Human Trafficking.
2.14 STATES OBLIGATION AND HUMAN TRAFFICKING 25
Obligations and rights are two sides of the same coin. In most cases, obligations
that arise out of international law are imposed on States. However, while the Fact Sheet focuses
specifically on this aspect, it is important to keep in mind that individuals and private entities,
such as corporations, can also be subject to legal obligations.
2.14.1 Sources of obligations
Treaties are the primary source of obligations for States with respect to
trafficking. By becoming a party to a treaty, States undertake binding obligations in international
law and undertake to ensure that their own national legislation, policies or practices meet the
requirements of the treaty and are consistent with its standards. These obligations are enforceable
in international courts and tribunals with appropriate jurisdiction, such as the International Court
of Justice, the International Criminal Court or the European Court of Human Rights, and may be
enforceable in domestic courts, depending on domestic law. Because trafficking is a complex
issue that can be considered from different perspectives, many treaties are relevant. For example,

23
Gupta, Interview, and personal interviews with her while working as a consultant to
her on a USAID project on Southeast Asia in 2004 .(available on web site)
24
IOM, Combating Trafficking in South-East Asia. ( available on web site)
25
http://www.ohchr.org/Documents/Publications/FS36_en.pdf (Visited on march 2017)

37
treaties dealing with slavery and the slave trade, forced labour, child labour, the rights of women,
the rights of children, migrant workers and persons with disabilities, as well as more general
treaties dealing with civil, cultural, economic, political or social rights, are all applicable to
trafficking. Major crime control treaties, such as the United Nations Convention against
Transnational Organized Crime and the United Nations Convention against Corruption are also
relevant to trafficking, as is the Rome Statute of the International Criminal Court. These are in
addition to the treaties dealing specifically and exclusively with trafficking.
Other accepted sources of international law, such as custom, general
principles and the decisions of international tribunals, can also be relevant when determining
exactly what is required of States in their response to trafficking. The prohibition on slavery is
widely recognized to be part of customary international law, binding on all States irrespective of
whether they have actually become a party to one or more treaties that specifically prohibit
slavery. A general principle of law is one that is common to all major legal systems of
law and thereby part of international law. A general principle of law relevant to trafficking is that
someone should not be held responsible for a crime he or she was compelled to commit. An
example of a judgement of an international tribunal that has helped to establish the international
legal framework around trafficking is Rantsev v. Cyprus and Russia, which was decided by
the European Court of Human Rights in 2009.
Finally, it is important to consider the many instruments around trafficking
that are not strictly law. These include the Recommended Principles and Guidelines on Human
Rights and Human Trafficking; guidelines on child trafficking, issued by the United Nations
Childrens Fund (UNICEF), and on trafficking and asylum, issued by the Office of the United
Nations High Commissioner for Refugees (UNHCR); resolutions adopted by the General
Assembly and the Human Rights Council; findings and reports of international human
mechanisms such as treaty bodies and special procedures; and non-treaty agreements between
countries regarding issues such as the repatriation and reintegration of trafficked persons.
These varied sources of soft law do not directly impose obligations on
Statesor confer rights on individuals or groups. It is therefore important to the integrity of
international law that their legal weight is not overstated. However, some soft law instruments
can form part of the international legal framework by, for example, helping to identify or
confirm a particular legal trend or even by contributing to the development of customary

38
international law in relation to a particular aspect of trafficking. Soft law can also provide insight
into the substantive content of more general legal norms that are contained in treaties. For
example, the Trafficking Protocol requires States to take some measures to provide victims of
trafficking with access to remedies. Soft law materials, such as the Recommended Principles and
Guidelines, as well as reports of the United Nations Special Rapporteur on trafficking, are key
resources in determining the actions required by States to fulfil this particular obligation.
2.15 Understanding State responsibility to address trafficking
To what extent are States responsible for trafficking-related harm? This is an
important question because it will determine what they are required to do to prevent or respond
to trafficking. States may sometimes be reluctant to accept legal responsibility for trafficking and
its concomitant violations of human rights. They may argue, for example, that the primary wrong
has been committed by private criminals and not by the State itself. They might also claim to
have done everything possible to prevent the harm.
Although determining the responsibility of States can be difficult because of
the complex nature of trafficking and its associated legal framework, in very general terms,
States will be responsible for their own acts or omissions that breach their obligations under
international law, including human rights law. In addition, States will generally not be able to
avoid responsibility for the acts of private persons when their ability to influence an alternative,
more positive outcome can be established. In such cases, the source of responsibility is not the
act itself but the failure of the State to take measures of prevention or response in accordance
with the required standard, usually to be found in a treaty.
2.16 The obligation to identify, protect and support victims of trafficking
Over the past decade there has been great progress in clarifying the rights of
victims of trafficking to protection and supportand the corresponding obligations of States.
While there are still some areas that remain to be settled, there is a general agreement around
several core obligations, all based on a general duty to identify victims of trafficking in the first
place. Some of these obligations are: providing immediate protection and support; providing
legal assistance, including temporary residency, and not criminalizing the victims.
2.17 Victim identification
Victims of trafficking are often not identified and, as a result, are simply
invisible. When victims of trafficking do come to official attention, they may be misidentified as

39
illegal or smuggled migrants. This is significant because, as explained in the Recommended
Principles and Guidelines, a failure to identify a trafficked person correctly is likely to result in
a further denial of that persons rights (guideline 2). If a trafficked person is not identified at all
or is incorrectly identified as a criminal or an irregular or smuggled migrant, then this will
directly affect that persons ability to access the rights to which she or he is entitled. In short,
failure to quickly and accurately identify victims of trafficking renders any rights granted to such
persons illusory.
The obligation to identify victims of trafficking is implied in all legal
instruments that provide for victim protection and support. The Recommended Principles and
Guidelines identify a range of practical steps that should be taken to ensure that victims of
trafficking are quickly and accurately identified. These include preparing written identification
tools such as guidelines and procedures that can be used to support identification; and training
relevant officials (such as police, border guards, immigration officials and others involved in the
detection, detention, reception and processing of irregular migrants) in accurate identification
and the correct application of agreed guidelines and procedures.
2.18 Provision of immediate protection and support
Victims who break free from their traffickers often find themselves in a situation
of great insecurity and vulnerability. They may be physically injured as well as physically and/or
emotionally traumatized. They may be afraid of retaliation. They are likely to have few, if any,
means of subsistence. Unfortunately, the harm experienced by victims of trafficking does not
necessarily cease when they come to the attention of the authorities. Mistreatment by public
officials may result in a continuation of an exploitative situation or the emergence of a new one.
The harm already done to victims can be compounded by failures to provide medical and other
forms of supportor by linking it to an obligation to cooperate that victims may not be willing
or able to meet.
The State in which a victim is located is responsible for providing that
person with immediate protection and support. This responsibility becomes operational when the
State knows or should know that an individual within its jurisdiction is a victim of trafficking.
The principle is applicable to all countries in whose territory the victim is located. It applies to all
trafficked persons, whether victims of national or transnational trafficking.

40
 The first and most immediate obligation of that State is to ensure that the
victim is protected from further exploitation and harmfrom those who have already exploited
that person as well as from anyone else. What this means in practice will depend on the
circumstances of each case. The standard of due diligence, discussed at various points in this
Fact Sheet, certainly requires States to take reasonable measures to this end. In most situations,
reasonable protection from harm requires:
(a) Moving the trafficked person out of the place of exploitation to a place of safety;
(b) Attending to the immediate medical needs of the trafficked person;
(c) Assessing whether the trafficked person is under a particular risk of
intimidation or retaliation.
The right to privacy26 is an important aspect of protecting victims from further
harm. Failure to protect privacy can increase the danger of intimidation and retaliation. It can
cause humiliation and hurt to victims and compromise their recovery.
The State in which a trafficked person is located is also required to provide
that person with physical and psychological care that is adequate to meet at least immediate
needs. Importantly, the provision of such care has been widely acknowledged to be a non-
negotiable right of the victim: a right that should be recognized and implemented irrespective of
that persons capacity or willingness to cooperate with criminal justice authorities. There is
growing recognition that separating protection and support from victim cooperation in this way
is a fundamental part of a human rights approach to trafficking.
A human rights approach requires that the provision of care and support should be both
informed and non-coercive. For example, victims of trafficking should receive information on
their entitlements so they can make an informed decision about what to do. As discussed above,
care and support should not be made conditional on cooperation with criminal justice authorities.
Victims should also be able to refuse care and support. They should not be forced into accepting
or receiving assistance.
2.19 Legal assistance and involvement
Trafficked persons have an important role to play and a legitimate interest in
legal proceedings against their exploiters. A human rights approach to trafficking requires that all

26
State parties are required to protect the private life and identity of victims. European Trafficking Convention,
article 11

41
efforts should be made to ensure victims are able to participate in legal proceedings freely, safely
and on the basis of full information. Victim involvement in legal proceedings can take different
forms. Individuals who have been trafficked may provide evidence against their exploiters, either
through written statements or in person, as part of a trial. They may also be called upon to
provide a victim statement about the impact of the offence that could become part of a
sentencing hearing. In civil proceedings against their exploiters, trafficked persons may be
applicants and/or witnesses. Even a trafficked person who is unwilling or unable to testify still
has a legitimate interest in the legal proceedings.
Victims of trafficking who are involvedor potentially involvedin legal
proceedings have special needs and vulnerabilities that must be addressed. Obligations that flow
from this are in addition to the protection, assistance and support obligations mandated for all
trafficked persons and discussed above. For example
(a)Trafficked persons should be provided with legal and other assistance in relation to any court
or administrative proceedings in a language they understand. This should include keeping
victims informed of the scope, timing and progress of proceedings and of the outcome of their
cases.27
(b) Trafficked persons have a right to be present and express their views during any legal
proceedings.
In summary, trafficked persons should be given a genuine opportunity to
consider their legal options. This requires, at a minimum, the provision of information of a type
and in a manner that will allow them to make an informed choice. Should trafficked persons be
involved in, or otherwise support, any form of legal action, they have the right to play a
meaningful role
in that process and to receive protection and support for the duration of their involvement.
2.20 Temporary residence permits and reflection periods
Victims of trafficking who are unlawfully in a country face special dangers and
vulnerabilities as a result of their legal status. For example, they may be unable to access
important sources of subsistence and support such as housing and work opportunities. They may
be vulnerable to further exploitation as well as intimidation and retaliation. They risk being
prevented from participating effectively and meaningfully in legal proceedings against their

27
http://www.ohchr.org/Documents/Publications/FS36_en.pdf

42
traffickers. Without regularization of their status, victims also risk being detained in immigration
facilities or shelters. In addition, they are liable to deportation at any time.
In practice it has been observed that victims of trafficking may have their situation
regularized for a number of reasons and in a number of ways, for instance through:
(1) Granting of a reflection and recovery period during which non-conditional support is given
with the aim of providing victims with time and space to decide on their options, including
whether they will cooperate with criminal justice agencies in the prosecution of their exploiters;
(2) Granting of a temporary residence permit linked to (usually criminal) proceedings against
traffickers; such visas usually require victim cooperation and terminate once legal proceedings
are completed; and
(3) Granting of a temporary residence permit on social or humanitarian grounds that may be
related to, for example, respect for the principle of non-refoulement (discussed further below),
inability to guarantee a secure return and risk of re-trafficking.
The following important principles and obligations, found in a range of
international and regional instruments, are relevant to any consideration of whether a victim of
trafficking should be granted a right to temporary residence:
(a) The right of victims to participate in legal proceedings against their traffickers and to remain
in the country during the proceedings;
(b) The right of victims to receive protection from further harm;
(c) The right of victims to access effective remedies;
(d) The obligation on States not to return victims when they are at serious risk of harm, including
from intimidation, retaliation and re-trafficking; and
(e) The special rights of child victims of trafficking, including the obligation
to take full account of the childs best interests.
2.21 Special measures for trafficked children: identification
International law requires that child victims of trafficking should be accorded
special measures of protection and support. The nature of these measures will generally reflect
the particular challenges involved in supporting and protecting children. For example, in relation
to identification, it is important to acknowledge that not all child victims of trafficking will
present as such. They may appear to be 18 or older. Their passports may have been destroyed or
taken away from them. They may be carrying false identity papers that misstate their age. Child

43
victims of trafficking may lie about their age because this is what they have been told to do by
their exploiters. They may lie because they are afraid of being taken into care or being sent back
home. There is growing acceptance of a presumption of age in the case of children. Under such a
presumption, a victim who may be a child is treated as a child unless or until another
determination is made. It removes special or additional difficulties that would otherwise
complicate the identification of child victims
The presumption of age is linked to the presumption of status: that a child who may be a
victim of trafficking is presumed to be a victim unless or until another determination is made.
Regarding the laws, systems and procedures that should be in place to ensure rapid and
accurate identification of child victims, the UNICEF Guidelines provide important guidance:
(a) States are to establish effective procedures for the rapid identification of child victims,
including procedures to identify child victims at ports of entry and other locations;27
(b) Efforts are to be made to share information between relevant agencies and individuals in
order to ensure children are identified and assisted as early as possible;28 and
(c) Social welfare, health or education authorities are to contact the relevant law enforcement
authority where there is knowledge or suspicion that a child is being exploited or trafficked or is
at risk of exploitation or trafficking.
These are some of the measures which are taken by states in favour of trafficked person
when ever their human rights are infringed.

2.22 INTERNATIONAL PROTOCOLS AND CONVENTIONS ON HUMAN

TRAFFICKING

2.22.1 International Covenant on Civil and Political Rights (1966)28

Article 2.
1.Each State Party to the present Covenant undertakes to respect and to ensure to all individuals
within its territory and subject to its jurisdiction the rights recognized in the present Covenant,
without distinction of any kind, such as race, colour, sex, language, religion, political or other
opinion, national or social origin, property, birth or other status.

28
treaties.un.org/doc/publication/unts/volume%20999/volume-999-i-14668-english.pdf(visited on march 2017)

44
2. Where not already provided for by existing legislative or other measures, each State Party
to the present Covenant undertakes to take the necessary steps, in accordance with its
constitutional processes and with the provisions of the present Covenant, to adopt such
legislative or other measures as may be necessary to give effect to the rights recognized in the
present Covenant.
3.Each State Party to the present Covenant undertakes:
(a)To ensure that any person whose rights or freedoms as herein recognized are violated shall
have an effective remedy, notwithstanding that the violation has been committed by persons
acting in an official capacity;
(b) To ensure that any person claiming such a remedy shall have his right thereto determined by
competent judicial, administrative or legislative authorities, or by any other competent authority
provided for by the legal system of the State, and to develop the possibilities of judicial remedy;
(c) To ensure that the competent authorities shall enforce such remedies when
granted.
Article 3
The States Parties to the present Covenant undertake to ensure the equal right of men and women
to the enjoyment of all civil and political rights set forth in the present Covenant.
Article 7.
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
In particular, no one shall be subjected without his free consent to medical or scientific
experimentation.
Article 8.
1. No one shall be held in slavery; slavery and the slave-trade in all their forms shall be
prohibited.
2. No one shall be held in servitude.
3.(a) No one shall be required to perform forced or compulsory labor, (o) Paragraph 329
(b) shall not be held to preclude, in countries where imprisonment with hard labor may be
imposed as a punishment for a crime, the performance of hard labor in pursuance of a sentence to
such punishment by a competent court.

29
United Nations, Treaty Series, vol. 78, p. 277.

45
 (c) For the purpose of this paragraph the term "forced or compulsory labor"
shall not include:
(i) Any work or service, not referred to in sub-paragraph (b), normally required of
a person who is under detention in consequence of a lawful order of a court, or
of a person during conditional release from such detention;
(ii) Any service of a military character and, in countries where conscientious objection is
recognized, any national service required by law of conscientious objectors;
(iii) Any service exacted in cases of emergency or calamity threatening the life or
well-being of the community;
(iv) Any work or service which forms part of normal civil obligations.
Article 9.
1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary
arrest or detention. No one shall be deprived of his liberty except on such grounds and in
accordance with such procedure as are established by law.
2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and
shall be promptly informed of any charges against him.
3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or
other officer authorized by law to exercise judicial power and shall be entitled to trial within a
reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be
detained in custody, but release may be subject to guarantees to appear for trial, at any other
stage of the judicial proceedings and, should occasion arise, for execution of the judgement.
4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings
before a court, in order that that court may decide without delay on the lawfulness of his
detention and order his release if the detention is not lawful.
5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to
compensation.
Article 12.
1. Everyone lawfully within the territory of a State shall, within that territory, have the right to
liberty of movement and freedom to choose his residence.
2. Everyone shall be free to leave any country, including his own.

46
3. The above-mentioned rights shall not be subject to any restrictions except those which are
provided by law, are necessary to protect national security, public order (ordre republic), public
health or morals or the rights and freedoms of others, and are consistent with the other rights
recognized in the present Covenant.
No one shall be arbitrarily deprived of the right to enter his own country.
Article 14
1. All persons shall be equal before the courts and tribunals. In the determination of any criminal
charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a
fair and public hearing by a competent, independent and impartial tribunal established by law.
The Press and the public may be excluded from all or part of a trial for reasons of morals, public
order (or republic) or national security in a democratic society, or when the interest of the private
lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in
special circumstances where publicity would prejudice the interests of justice; but any judgement
rendered in a criminal case or in a suit at law shall be
made public except where the interest of juvenile persons otherwise requires or the proceedings
concern matrimonial disputes or the guardianship of children.
2. Everyone charged with a criminal offence shall have the right to be presumed innocent until
proved guilty according to law.
3. In the determination of any criminal charge against him, everyone shall be entitled to the
following minimum guarantees, in full equality:

(a) To be informed promptly and in detail in a language which he understands of the

nature and cause of the charge against him;
(b) To have adequate time and facilities for the preparation of his defence and to
communicate with counsel of his own choosing;
(c) To be tried without undue delay;
(d) To be tried in his presence, and to defend himself in person or through legal
assistance of his own choosing; to be informed, if he does not have legal assistance, of this right;
and to have legal assistance assigned to him, in any case where the interests of justice so require,
and without payment by him in any such case if he does not have sufficient means to pay for it;

47
 (e) To examine, or have examined, the witnesses against him and to obtain the
attendance and examination of witnesses on his behalf under the same conditions as witnesses
against him;
(f) To have the free assistance of an interpreter if he cannot understand or speak the
language used in court;
(g) Not to be compelled to testify against himself or to confess guilt.
4 .In the case of juvenile persons, the procedure shall be such as will take account of their age
and the desirability of promoting their rehabilitation.
5.Everyone convicted of a crime shall have the right to his conviction and sentence being
reviewed by a higher tribunal according to law.
6. When a person has by a final decision been convicted of a criminal offence and when
subsequently his conviction has been reversed or he has been pardoned on the ground that a new
or newly discovered fact shows conclusively that there has been a miscarriage of justice, the
person who has suffered punishment as a result of such conviction shall be compensated
according to law, unless it is proved that the non-disclosure of the unknown fact in time is
wholly or partly attributable to him.
7. No one shall be liable to be tried or punished again for an offence for which he has already
been finally convicted or acquitted in accordance with the law and penal procedure of each
country.
Article 26.
All persons are equal before the law and are entitled without any discrimination to the equal
protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to
all persons equal and effective protection against discrimination on any ground such as race,
colour, sex, language, religion, political or other opinion, national or social origin, property, birth
or other status.
Monitoring body is the Human Rights Committee.

48
 2.22.2 International Covenant on Economic, Social and Cultural Rights
(1966)30
Article 2.
1. Each State Party to the present Covenant undertakes to take steps, individually and through
international assistance and co-operation, especially economic and technical, to the maximum of
its available resources, with a view to achieving progressively the full realization of the rights
recognized in the present Covenant by all appropriate means, including particularly the adoption
of legislative measures.
2. The States Parties to the present Covenant undertake to guarantee that the rights enunciated in
the present Covenant will be exercised without discrimination of any kind as to race, colour, sex,
language, religion, political or other opinion, national or social origin, property, birth or other
status.
Article 3.
The States Parties to the present Covenant undertake to ensure the equal right of men and
women to the enjoyment of all economic, social and cultural rights set forth in the present
Covenant.

Article 6 .
1. The States Parties to the present Covenant recognize the right to work, which includes the right
of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and
will take appropriate steps to safeguard this right.
2. The steps to be taken by a State Party to the present Covenant to achieve the full realization of
this right shall include technical and vocational guidance and training programmes, policies and
techniques to achieve steady economic, social and cultural development and full and productive
employment under conditions safeguarding fundamental political and economic freedoms to the
individual.
Article 7 .
The States Parties to the present Covenant recognize the right of everyone to the enjoyment of
just and favourable conditions of work which ensure, in particular:
30

http://nhrc.nic.in/documents/International%20Covenant%20on%20Economic%20Social%20and%20Cultural%20Ri
ghts.pdf (Visited on march 2017)

49
(a) Remuneration which provides all workers, as a minimum, with:
(i)Fair wages and equal remuneration for work of equal value without distinction of any kind ,in
particular women being guaranteed conditions of work not inferior to those enjoyed by men,
with equal pay for equal work;
(ii) A decent living for themselves and their families in accordance with the provisions of the
present Covenant;
Safe and healthy working conditions;
(a) Equal opportunity for everyone to be promoted in his employment to an appropriate higher
level, subject to no considerations other than those of seniority and competence;
(b) Rest, leisure and reasonable limitation of working hours and periodic holidays with pay, as
well as remuneration for public holidays.
Article 10 .
The States Parties to the present Covenant recognize that:
1. The widest possible protection and assistance should be accorded to the family, which is the
natural and fundamental group unit of society, particularly for its establishment and while it is
responsible for the care and education of dependent children. Marriage must be entered into
with the free consent of the intending spouses.
2. Special protection should be accorded to mothers during a reasonable period before and
after childbirth. During such period working mothers should be accorded paid leave or leave
with adequate social security benefits.
3. Special measures of protection and assistance should be taken on behalf of all children and
young persons without any discrimination for reasons of parentage or other conditions.
Children and young persons should be protected from economic and social exploitation. Their
employment in work harmful to their morals or health or dangerous to life or likely to hamper
their normal development should be punishable by law. States should also set age limits below
which the paid employment of child labor should be prohibited and punishable by law.
Article 11.
1. The States Parties to the present Covenant recognize the right of everyone to an adequate
standard of living for himself and his family, including adequate food, clothing and housing,
and to the continuous improvement of living conditions. The States Parties will take appropriate
steps to ensure the realization of this right, recognizing to this effect the essential

50
importance of international co-operation based on free consent.
2. The States Parties to the present Covenant, recognizing the fundamental right of everyone
to be free from hunger, shall take, individually and through international co-operation, the
measures, including specific programmes, which are needed:
(a) To improve methods of production, conservation and distribution of food by making full
use of technical and scientific knowledge, by disseminating knowledge of the principles of
nutrition and by developing or reforming agrarian systems in such a way as to achieve the
most efficient development and utilization of natural resources;
(b) Taking into account the problems of both food-importing and food-exporting countries, to
ensure an equitable distribution of world food supplies in relation to need.
Article 12 .
1. The States Parties to the present Covenant recognize the right of everyone to the
enjoyment of the highest attainable standard of physical and mental health.
2. The steps to be taken by the States Parties to the present Covenant to achieve the full
realization of this right shall include those necessary for:
(a) The provision for the reduction of the stillbirth-rate and of infant mortality and for the
healthy development of the child;
(b)The improvement of all aspects of environmental and industrial hygiene;
(c)The prevention, treatment and control of epidemic, endemic, occupational and other
diseases;
(d) The creation of conditions which would assure to all medical service and medical attention
in the event of sickness.
Monitoring Body is the Committee on Economic, Social and Cultural Rights.

2.22.3 Convention on the Elimination of all Forms of Discrimination Against

Women (Women's Convention, 1979)31
Article 1.
For the purposes of the present Convention, the term "discrimination against women" shall
mean any distinction, exclusion or restriction made on the basis of sex which has the effect or

31
http://www.ohchr.org/Documents/ProfessionalInterest/cedaw.pd (Visited on march 2017)

51
 purpose of impairing or nullifying the recognition, enjoyment or exercise by women,
irrespective of their marital status, on a basis of equality of men and women, of human rights
and fundamental freedoms in the political, economic, social, cultural, civil or any other field.
Article 6.
States Parties shall take all appropriate measures, including legislation, to suppress all forms of
trafficking women and exploitation of prostitution of women.
Article 9.
1. States Parties shall grant women equal rights with men to acquire, change or retain their
nationality. They shall ensure in particular that neither marriage to an alien nor change of
nationality by the husband during marriage shall automatically change the nationality of the wife,
render her stateless or force upon her the nationality of the husband.
2. States Parties shall grant women equal rights with men with respect to the nationality of their
children.
Article 15 .
1. States Parties shall accord to women equality with men before the law.
2. States Parties shall accord to women, in civil matters, a legal capacity identical to that of men
and the same opportunities to exercise that capacity. In particular, they shall give women equal
rights to conclude contracts and to administer property and shall treat them equally in all stages
of procedure in courts and tribunals.
3. States Parties agree that all contracts and all other private instruments of any kind with legal
effect which is directed at restricting the legal capacity of women shall be deemed null and void
4. States Parties shall accord to men and women the same rights with regard to the law relating to
the movement of persons and the freedom to choose their residence and domicile.
Monitoring Body is the Committee on the Elimination of Discrimination against Women
(CEDAW). CEDAW and its mechanisms are discussed further in Chapter IV.
2.22.4 Convention on the Rights of the Child (1989) 32
Article 7.

32
http://www.ohchr.org/Documents/ProfessionalInterest/crc.pdf ( Visited on march2017)

52
1. The child shall be registered immediately after birth and shall have the right from birth to a
name, the right to acquire a nationality and. as far as possible, the right to know and be cared for
by his or her parents.
2. States Parties shall ensure the implementation of these rights in accordance with their national
law and their obligations under the relevant international instruments in this field, in particular
where the child would otherwise be stateless.
Article 16 .
(1) No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family,
home or correspondence, nor to unlawful attacks on his or her honour and reputation.
(2) The child has the right to the protection of the law against such interference or attacks.
Article 19 .
(1) States Parties shall take all appropriate legislative, administrative, social and educational
measures to protect the child from all forms of physical or mental violence, injury or abuse,
neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the
care of parent(s), legal guardian(s) or any other person who has the care of the child.
(2) Such protective measures should, as appropriate, include effective procedures for the
establishment of social programmes to provide necessary support for the child and for those who
have the care of the child, as well as for other forms of prevention and for identification,
reporting, referral, investigation, treatment and follow-up of instances of child maltreatment
described heretofore, and, as appropriate, for judicial involvement.
Article 35.
States Parties shall take all appropriate national, bilateral and multilateral measures to prevent
the abduction of, the sale of or traffic in children for any purpose or in any form.
Article 39.
States Parties shall take all appropriate measures to promote physical and psychological recovery
and social reintegration of a child victim of: any form of neglect, exploitation, or abuse; torture
or any other form of cruel, inhuman or degrading treatment or punishment; or armed conflicts.
Such recovery and reintegration shall take place in an environment which fosters the health, self-
respect and dignity of the child.

53
 Monitoring Body is the Committee on the Rights of the Child.

2.22.5 Optional Protocol to the Convention on the Rights of the Child on the
sale of children, child prostitution and child pornography (2000)33 34
Article 1.
States Parties shall prohibit the sale of children, child prostitution and child pornography as
provided for by the present Protocol.
Article 2.
For the purposes of the present Protocol:
(a) Sale of children means any act or transaction whereby a child is transferred by any person or
group of persons to another for remuneration or any other consideration;
(b) Child prostitution means the use of a child in sexual activities for remuneration or any other
form of consideration;
(c) Child pornography means any representation, by whatever means, of a child engaged in real or
simulated explicit sexual activities or any representation of the sexual parts of a child for
primarily sexual purposes.
Article 3.
1. Each State Party shall ensure that, as a minimum, the following acts and activities are fully
covered under its criminal or penal law, whether such offences are committed domestically or
transnationally or on an individual or organized basis:
Offering, delivering or accepting, by whatever means, a child for the purpose of:
a. Sexual exploitation of the child;
b. Transfer of organs of the child for profit;
c. Engagement of the child in forced labor;
2. Subject to the provisions of the national law of a State Party, the same shall apply to an
attempt to commit any of the said acts and to complicity or participation in any of the said acts.
3. Each State Party shall make such offences punishable by appropriate penalties that take into
account their grave nature.

33
https://www.unicef-irc.org/publications/pdf/optional_protocol_eng.pdf (Visited on march2017)
34
[adopted by the General Assembly but not yet in force]

54
4. Subject to the provisions of its national law, each State Party shall take measures, where
appropriate, to establish the liability of legal persons for offences established in paragraph 1 of
the present article. Subject to the legal principles of the State Party, such liability of legal persons
may be criminal, civil or administrative.
5. States Parties shall take all appropriate legal and administrative measures to ensure that all
persons involved in the adoption of a child act in conformity with applicable international legal
instruments.
Article 8.
1. States Parties shall adopt appropriate measures to protect the rights and interests of child
victims of the practices prohibited under the present Protocol at all stages of the criminal justice
process, in particular by:
(a) Recognizing the vulnerability of child victims and adapting procedures to recognize their
special needs, including their special needs as witnesses;
(b) Informing child victims of their rights, their role and the scope, timing and progress of the
proceedings and of the disposition of their cases;
(c) Allowing the views, needs and concerns of child victims to be presented and considered in
proceedings where their personal interests are affected, in a manner consistent with the
procedural rules of national law;
(d) Providing appropriate support services to child victims throughout the legal process;
(e) Protecting, as appropriate, the privacy and identity of child victims and taking measures in
accordance with national law to avoid the inappropriate dissemination of information that could
lead to the identification of child victims;
(f) Providing, in appropriate cases, for the safety of child victims, as well as that of their
families and witnesses on their behalf, from intimidation and retaliation;
(g) Avoiding unnecessary delay in the disposition of cases and the execution of orders or
decrees granting compensation to child victims.
3. States Parties shall ensure that, in the treatment by the criminal justice system of children who
are victims of the offences described in the present Protocol, the best interest of the child shall be
a primary consideration.

55
 4. States Parties shall take measures to ensure appropriate training, in particular legal and
psychological training, for the persons who work with victims of the offences prohibited under
the present Protocol.
5. States Parties shall, in appropriate cases, adopt measures in order to protect the safety and
integrity of those persons and/or organizations involved in the prevention and/or protection and
rehabilitation of victims of such offences.
6. Nothing in the present article shall be construed to be prejudicial to or inconsistent with the
rights of the accused to a fair and impartial trial.
Article 10.
1. States Parties shall take all necessary steps to strengthen international cooperation by
multilateral, regional and bilateral arrangements for the prevention, detection, investigation,
prosecution and punishment of those responsible for acts involving the sale of children, child
prostitution, child pornography and child sex tourism. States Parties shall also promote
international cooperation and coordination between their authorities, national and international
non-governmental organizations and international organizations.
2. States Parties shall promote international cooperation to assist child victims in their physical and
psychological recovery, social reintegration and repatriation.

2.22.6 Supplementary Convention on the Abolition of Slavery, the Slave

Trade and Institutions and Practices Similar to Slavery (1956)35

Article 1.
Each of the States Parties to this Convention shall take all practicable and necessary legislative
and other measures to bring about progressively and as soon as possible the complete abolition
or abandonment of the following institutions and practices, where they still exist and whether or
not they are covered by the definition of slavery contained in article 1 of the Slavery Convention
signed at Geneva on 25 September 1926:
(a) Debt bondage, that is to say, the status or condition arising from a pledge by a debtor of his
personal services or of those of a person under his control as security for a debt, if the value of
35
http://www.ohchr.org/EN/ProfessionalInterest/Pages/SupplementaryConventionAbolitionOfSlavery.aspx (Visited
on march 2017)

56
 those services as reasonably assessed is not applied towards the liquidation of the debt or the
length and nature of those services are not respectively limited and defined;
(b) Serfdom, that is to say, the condition or status of a tenant who is by law, custom or agreement
bound to live and labor on land belonging to another person and to render some determinate
service to such other person, whether for reward or not, and is not free to change his status;
(c) Any institution or practice whereby:
(1) A woman, without the right to refuse, is promised or given in marriage on payment of a
consideration in money or in kind to her parents, guardian, family or any other person or group;
or
(2) The husband of a woman, his family, or his clan, has the right to transfer her to another
person for value received or otherwise; or
(3) A woman on the death of her husband is liable to be inherited by another person;
(d) Any institution or practice whereby a child or young person under the age of 18 years, is
(e) delivered by either or both of his natural parents or by his guardian to another person, whether
for reward or not, with a view to the exploitation of the child or young person or of his labor.
Article 2
With a view to bringing to an end the institutions and practices mentioned in article 1 (c) of this
Convention, the States Parties undertake to prescribe, where appropriate, suitable minimum ages
of marriage, to encourage the use of facilities whereby the consent of both parties to a marriage
may be freely expressed in the presence of a competent civil or religious authority, and to
encourage the registration of marriages.
Article 6
1. The act of enslaving another person or of inducing another person to give himself or a person
dependent upon him into slavery, or of attempting these acts, or being accessory thereto, or being
a party to a conspiracy to accomplish any such acts, shall be a criminal offence under the laws of
the States Parties to this Convention and persons convicted thereof shall be liable to punishment.
2. Subject to the provisions of the introductory paragraph of article 1 of this Convention, the
provisions of paragraph 1 of the present article shall also apply to the act of inducing another
person to place himself or a person dependent upon him into the servile status resulting from any
of the institutions or practices mentioned in article 1, to any attempt to perform such acts, to
being accessory thereto, and to being a party to a conspiracy to accomplish any such acts.

57
 No monitoring committee.

2.22.7 UN Protocol to Prevent, Suppress and Punish Trafficking in Persons,

Especially Women and Children, supplementing the UN Convention Against
Transnational Organised Crime.36
Article 3.
(a) 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 receiving of payments or benefits to achieve the consent of a person having control
over another person, 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
or services, slavery or practices similar to slavery, servitude or the removal of organs;
(b) The consent of a victim of trafficking in persons to the intended exploitation set forth in
subparagraph (a) of this article shall be irrelevant where any of the means set forth in
subparagraph (a) have been used;
(c) The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of
exploitation shall be considered trafficking in persons even if this does not involve any of the
means set forth in(a) subparagraph (a) of this article;
(d) Child shall mean any person under eighteen years of age.
Article 6
Assistance to and protection of victims of trafficking in persons;
(1) In appropriate cases and to the extent possible under its domestic law, each State Party shall
protect the privacy and identity of victims of trafficking in persons, including, inter alia, by
making legal proceedings relating to such trafficking confidential.
(2) Each State Party shall ensure that its domestic legal or administrative system contains measures
that provide to victims of trafficking in persons, in appropriate cases:
(a) Information on relevant court and administrative proceedings;

36
[adopted October 2000, open for signature December 2000]

58
 (b) Assistance to enable their views and concerns to be presented and considered at appropriate
stages of criminal proceedings against offenders, in a manner not prejudicial to the rights of the
defence.
(1) Each State Party shall consider implementing measures to provide for the physical, psychological
and social recovery of victims of trafficking in persons, including, in appropriate cases, in
cooperation with non-governmental organizations, other relevant organizations and other
elements of civil society, and, in particular, the provision of:
(a) Appropriate housing;
(b) Counselling and information, in particular as regards their legal rights, in a language
that the victims of trafficking in persons can understand;
(c) Medical, psychological and material assistance; and
(d) Employment, educational and training opportunities.
(2) Each State Party shall take into account, in applying the provisions of this article, the age, gender
and special needs of victims of trafficking in persons, in particular the special needs of children,
including appropriate housing, education and care.
(1) Each State Party shall endeavour to provide for the physical safety of victims of trafficking in
persons while they are within its territory.
(2) Each State Party shall ensure that its domestic legal system contains measures that offer victims
of trafficking in persons the possibility of obtaining compensation for damage suffered.
Article 7.
Status of victims of trafficking in persons in receiving States;
(1) In addition to taking measures pursuant to article 6 of this Protocol, each State Party shall
consider adopting legislative or other appropriate measures that permit victims of trafficking in
persons to remain in its territory, temporarily or permanently, in appropriate cases.
(2) In implementing the provision contained in paragraph 1 of this article, each State Party shall
give appropriate consideration to humanitarian and compassionate factors.
Article 9.
Prevention of trafficking in persons
(1) States Parties shall establish comprehensive policies, programmes and other measures:
(a) To prevent and combat trafficking in persons; and

59
 (b)To protect victims of trafficking in persons, especially women and children, from re
victimization.
(2) States Parties shall take or strengthen measures, including through bilateral or multilateral
cooperation, to alleviate the factors that make persons, especially women and children
,vulnerable to trafficking, such as poverty, underdevelopment and lack of equal opportunity.
The Trafficking Protocol is the most recent international instrument that focuses
specifically on trafficking. It is one of two Protocols attached to the Crime Convention, the other
one deals with smuggling in persons. The creation of two separate protocols o trafficking in
persons and smuggling in persons respectively is important because it reflects the difference
between the acts, and the need for different measures to address these crimes. Trafficking is
defined for the first time in international lawn the Protocol. It will be further discussed later in
this chapter under Current Definitions. The Trafficking Protocol and its effectiveness in terms
of protecting rights of trafficked persons will be discussed further in Chapter IV.37
2.22.8 ILO Convention No. 182 on the Worst Forms of Child Labour (1999)38
Article 1
Each Member which ratifies this Convention shall take immediate and effective measures to
secure the prohibition and elimination of the worst forms of child labour as a matter of urgency.
Article 2
For the purposes of this Convention, the term child shall apply to all persons under the age of
18.
Article 6
(1) Each Member shall design and implement programmes of action to eliminate as a priority the
worst forms of child labour.
(2) Such programmes of action shall be designed and implemented in consultation with relevant
government institutions and employers' and workers' organizations, taking into consideration the
views of other concerned groups as appropriate.
Article 7

37
for an analysis of the UN Anti-Trafficking Protocol contact Ann Jordan of the International Human Rights Law
Group, Washington D.C., at annj@hrlawgroup.org ( Visited on march 2017)
38
http://blue.lim.ilo.org/cariblex/pdfs/ILO_Convention_182.pdf (Visited on march 2107)

60
 Each Member shall, taking into account the importance of education in eliminating
child labour, take effective and time-bound measures to:
(a) Prevent the engagement of children in the worst forms of child labour;
(b) Provide the necessary and appropriate direct assistance for the removal of children
from the worst forms of child labour and for their rehabilitation and social integration;
(c)Ensure access to free basic education, and, wherever possible and appropriate,
vocational training, for all children removed from the worst forms of child labour;
(d) identify and reach out to children at special risk; and
(e) take account of the special situation of girls.
Article 8
Members shall take appropriate steps to assist one another in giving effect to the
provisions of this Convention through enhanced international cooperation and/or assistance
including support for social and economic development, poverty eradication programmes and
universal education.
2.22.9 UN General Assembly Declaration on Violence Against Women, 1993 39
Article 2
Violence against women shall be understood to encompass, but not be limited to, the following:
Physical, sexual and psychological violence occurring in the family, including battering, sexual
abuse of female children in the household, dowry-related violence, marital rape, female genital
mutilation and other traditional practices harmful to women, non-spousal violence and violence
related to exploitation;
(a) Physical, sexual and psychological violence occurring within the general community,
including rape, sexual abuse, sexual harassment and intimidation at work, in educational
institutions and elsewhere, trafficking in women and forced prostitution;
(b) Physical, sexual and psychological violence perpetrated or condoned by the State, wherever
it occurs

Article 3.

39
http://www.un.org/documents/ga/res/48/a48r104.htm. (Visited on March 2017)

61
 Women are entitled to the equal enjoyment and protection of all human rights
and fundamental freedoms in the political, economic, social, cultural, civil or any other field.
These rights include, inter alia:
(a)The right to life;
(a) The right to equality;
(b) The right to liberty and security of person;
(c) The right to equal protection under the law;
(d) The right to be free from all forms of discrimination;
(e) The right to the highest standard attainable of physical and mental health;
(f) The right to just and favourable conditions of work;
(g) The right not to be subjected to torture, or other cruel, inhuman or degrading treatment or
punishment.
These are the primary international instruments relevant to trafficking; however,
some relevant international mechanisms related to trafficking do not spring directly from treaties.
These mechanisms, such as UN Special Reporters, are also important for NGO strategies.

62
 CHAPTER - 3
HUMAN TRAFFICKING IN SOUTH ASIA

INTRODUCTION
Trafficking has been viewed with increasing concern in South Asia as a region
and by individual South Asian countries as well. Many of them have already had provisions in
their laws, which could be used to combat trafficking, since colonial times as in the cases of
Bangladesh, India and Sri Lanka, or since the codifications of customary law as in Nepal. Many,
however, felt these provisions in general criminal codes to be insufficient and sought to check
trafficking by the passing of specific trafficking legislations. Due to the serious nature and the
wide prevalence of trafficking for sexual exploitation in the region, many of these laws deal with
this form of trafficking40. Instead of a complete code dealing with different forms of trafficking,
law is scattered across different legislations. The questions to be addressed are: What breadth
does trafficking laws cover? Also, how far is the cover an absolute one on all forms of
trafficking? And, finally, how far does the cover comply with international standards?
However, there are also cases of trafficking which are thinly disguised and may not prima facie
be identified as trafficking. These include, using the open border policy between Nepal and India

40
India's Immoral Traffic Prevention Act, 1956, is a classic example.

63
to bring in Nepali girls and women to India and then selling them to brothels, or the recruitment
and employment agency scams in Sri Lanka where persons find themselves in situations akin to
forced labor or labor with little or no remuneration. These need to be pinpointed by individual
nations and action taken speedily.
3.1 DEFINITIONS: THE LACK OF A COMMON DEFINITION ON
TRAFFICKING
Underlying all this is the difficulty that there is no common definition of trafficking. The
definition currently applicable to the region under this study is the one adopted in the SAARC
convention41 which is a limited one only covering trafficking for commercial sexual exploitation.
Trafficking is defined as moving, selling or buying of women and children for prostitution within
and outside a country for monetary or other considerations with, or without, the consent of the
person subjected to trafficking.42
Domestic laws even now lack a shared understanding of trafficking. Not all
domestic laws define trafficking43. Although India has a specific law on trafficking, it does not
define trafficking, but defines 'prostitution' to have the usual attributes of trafficking for sexual
exploitation44. The law of Bangladesh also defines 'trafficking of women and children' and not
trafficking in a holistic manner.45 The recent law in Nepal covers more forms of trafficking such
as for the removal of organs, but it also covers actions it considers immoral and punishable
though it is not, strictly speaking, trafficking Sri Lanka, as mentioned earlier, has made major
reforms in law in this area through modifications in the Penal Code in 2006 covering different
forms of trafficking along with a definition of trafficking.
How far is the SAARC definition used? Except for international conferences and
manuals prepared for different stakeholders, the definition has little practical significance where
the punitive law continues to follow a different definition. However, it is useful in cooperation

41
South Asian Association for Regional Cooperation Convention on Preventing and Combating Trafficking in
Women and Children for Prostitution, 2002.

42
Article 1 Ibid
43
The Immoral Traffic (Prevention Act), 1956.
44
It is hoped that the amendment that is on the cards will take this into consideration. The Goa Children's Act, 2003
has a definition on trafficking, but that is limited a) to the State of Goa in India, and b) to child trafficking only.
45
Women and Children Repression Prevention Act, 2000, Sections 5 and 6.

64
efforts and in making future policy for the South Asian Region which would help to combat
trafficking. It would make it far more relevant if it were mirrored in domestic laws.
3.2 SOUTH ASIA & THE PROTOCOL
In order to determine the efficacy of criminal justice systems in South Asia and
their effectiveness in handling trafficking, it is essential to compare the standards in South Asia
to the UNTOC standards as embodied in the Trafficking Protocol. The Protocol is fairly
comprehensive in terms of looking at a variety of strategies to combat cross border trafficking.
The problems of definition persist and impact many aspects of the Trafficking Protocol because a
country's reading of the Protocol would depend on its definition of trafficking.
3.3 PREVENTION
Prevention strategies under the UNTOC and Protocol largely involve cooperation between States
Parties in order to combat cross border trafficking. States are also required to undertake measures
to protect victims of trafficking and to prevent them from being re-victimized46. Research,
information and mass media campaigns, and social and economic initiatives to prevent and
combat all forms of trafficking, are advocated.47 A broad spectrum of initiatives tackling push
factors; such as poverty alleviation measures, are also suggested48 Many initiatives and strategies
are currently being used in the countries studied.
3.4 PROTECTION
Protection standards deal with measures to be taken to protect victims of
trafficking. Under Article 6 of the Protocol, assistance is to be given to the victims of trafficking
and they are to be protected. The protections may vary in the case of women, children and others.
All the States, except for Sri Lanka, do have certain protections falling within the ambit of this
provision. In India, a child in need of care and protection includes one who is vulnerable and
likely to be trafficked. Bangladesh has held that it is a fundamental right to be returned to
Bangladesh if a person has been trafficked to a different country - this is applicable to citizens of
Bangladesh. Nepal perhaps has more protections under this Article than the other States. A
number of provisions such as a right to legal representation, translation, protection of whistle

46
Article 9 UNTOC Protocol
47
Ibid Clause 2
48
Ibid. Clause 4

65
blowers, police protection, etc., provide both protection to the victim and assist the victim in
accessing justice.
3.5 PROSECUTION
What is prohibited and criminalized is the basis of all prosecution.
Criminalization of trafficking is largely focused on trafficking for commercial sexual
exploitation in its various forms or trafficking for employment. Cross border trafficking may
carry a higher penalty and so may trafficking of children. Criminal justice procedures need to
also be strengthened to avoid secondary victimization of victims during the trial process.49
While individual States have taken up a fair number of measures covering all
three, a detailed analysis of the area does throw up certain gaps within the region as far as
adherence to the Protocol is concerned .This is further accentuated by the fact that a number of
key treaties have limited application in the region.
3.6 BANGLADESH
Bangladesh is a major country of origin and transit for men, women and children
subjected to trafficking in persons, especially forced labor and forced prostitution.50 There is
internal trafficking within the country, but a large proportion of trafficking is cross border. Such
illegal transactions are on the rise between persons in India and Bangladesh. Often, such
transactions are carried out with ease. After India's partition in 1947, there were many 'enclaves'
between the borders of India and Bangladesh. There are 111 Indian enclaves in Bangladesh and
51 enclaves51 of Bangladesh in India. Research carried out by the Bangladesh National Women
Lawyers Association (BNWLA) has shown that these enclaves have been used as recruitment
and collection sites by traffickers.52
Many border areas53 are frequently used as land routes for trafficking.
Bangladesh has had laws specifically on trafficking right from 1933. There are action plans to

49
This may happen in many ways including lengthy procedures where their presence may be demanded time and
again in courts, harassment by powerful interests, forcible stay in protection homes, etc .

50
Trafficking in Persons Report 2010, United States Department of State, 14 June 2010 available at
http://www/unhcr.org/refworld/docid/4c18840ac.html (accessed on March 2017)
51
Enclaves are pockets of land belonging to a nation other than that which surrounds them.
52
Ruksana Gazi et al., Trafficking of Women and Children in Bangladesh, ICDDRB, Centre for Health and
Population Research, Dhaka, Bangladesh (2001).
53
Khulna, Jessore, Satkhira, Rajshahi, Dinajpur, Rangpur, Mymensingh, Comilla, Brahmanbaria and Sylhet.

66
protect children, including plans to specifically protect children against sexual abuse and
exploitation.54 In order to strengthen protection and prosecution, a number of steps were taken
including a new legislation in 200055 and the setting up of the Police Monitoring Cell for
Combating Trafficking in Women and Children in the Bangladesh Police Headquarters. The
latter is a 15 member strong team of police officers. There is also a 12 member police anti-
trafficking investigative unit to support this cell and an inter-Ministerial committee on human
trafficking chaired by the Home Minister.
Protection of victims of trafficking has seen a number of legal, medical,
psychosocial and economic support services by the State as well as by NGOs. Four NGOs
especially have been pinpointed by the Global Report on Trafficking in Persons, 2010 as playing
a crucial role in sheltering victims of trafficking, viz., the Association for Community
Development (ACD), The Thengamar Mohila Sabuj Sangha (TMSS), the Dhaka Ahsania
Mission (DAM) and the Bangladesh National Women Lawyers Association (BNWLA). The
Ministry of Expatriate Welfare and Overseas Employments operates shelters for female
Bangladeshi victims of trafficking and exploitation in some places overseas, though Indian cities
are not among them.
A large proportion of cross border trafficking in Bangladesh is due to migration in
search of employment. Many Bangladeshi men and women migrate willingly to countries other
than India, such as Saudi Arabia, Bahrain, Kuwait, the United Arab Emirates (UAE), Qatar, Iraq,
Lebanon and Malaysia for work under formal contracts. Recruiting agencies acting as
middlemen in such cases often charge exorbitantly, and there have been a number of cases of
recruitment fraud where such migrants are misled about the terms of employment including
payment. They find themselves being forced to work without wages and sometimes face physical
or sexual abuse. Women work as domestic servants and often find themselves helpless if there is
violence against them. The Bureau of Manpower Employment and Training (BMET) shut down
some recruiting agencies which had exploitative practices; however, no recruitment agency has
been prosecuted for trafficking related crimes.

54
National Plan of Action for Children 2004-2009 and the National Plan of Action against Sexual Abuse and
Exploitation of Children
55
Women and Children Repression Prevention Act, 2000.

67
 Bureau of Manpower Employment and Training (BMET) shut down some
recruiting agencies which had exploitative practices; however, no recruitment agency has been
prosecuted for trafficking related crimes.56On prosecution, there is a large backlog of cases due
to procedural delays. Existing penal laws of Bangladesh are predominantly based on the
philosophy of crime control method rather than human rights based approach. The concept of
restorative justice is fully ignored in the counter trafficking penal legal framework of
Bangladesh. The role of victims is restricted to that of informant and witness for the prosecution,
even though s/he has suffered physical, emotional, psychological injury as well as financial and
property losses. This approach seriously discourages the victims of trafficking to actively
participate in the investigation and trial proceedings which ultimately results in very low
conviction rate in trafficking cases. There are special courts for the prosecution of crimes of
violence against women and children. The bulk of trafficking cases is in the realm of trafficking
for commercial sexual exploitation, and trafficking for labor has not received the same attention.
Bangladesh's concerns lie in preventing trafficking, especially that which is labor
related, clearing the backlog in cases and improving conditions to make the employment
situation more attractive at home.
3.7 CONSTITUTIONAL PROTECTION & TRAFFICKING
Bangladesh has addressed issues of trafficking in specific terms in its Constitution. There are two
main provisions on trafficking - one dealing with forced labor and the other with prostitution.
Article 34(1) Provided that Prohibits all forms of forced labours.
Article 18(2) Provided that Places a duty upon a state to adopt effective measures to prevent
prostitution.
The Constitution of Bangladesh deals specifically with two forms of trafficking -
labor and commercial sexual exploitation. In Article 34(1), all forms of forced labor are
prohibited, and Article 18(2) places a duty upon the State to prevent prostitution. Trafficking for
purposes of labor or sexual exploitation, thus, are dealt with in the Constitution. Article 31 of the
Constitution guarantees every citizen the right to enjoy the protection of law wherever they may
be. The implication of this provision is that to enjoy the protection of law it is not essential for a
citizen to be on the territory of Bangladesh. In other words, the state is obliged to ensure the

56
Trafficking in Persons Report 2010, United States Department of State, 14 June 2010 available at
http://www/unhcr.org/refworld/docid/4c18840ac.html (accessed on March 2017)

68
protection of law internally and extraterritorially. Therefore, the obligation of Bangladesh state
for repatriation of trafficked victims is very much implied in this fundamental right provision of
the Constitution of Bangladesh.
3.8 WOMEN & CHILDREN PREVENTION ACT ,2000
Bangladesh has framed a special legislation dealing with trafficking. Two distinguishing features
of this legislation are one, that its focus is on trafficking for commercial sexual exploitation, and
two, that sometimes the law blurs the distinction between commercial sex / prostitution and
commercial sexual exploitation / trafficking.
Bangladesh's Women and Children Repression Prevention Act, 2000 ,57 is a fairly
recent law which was enacted for the sole purpose of dealing with violence against women and
children, including for commercial sexual exploitation. It criminalizes trafficking for prostitution
or other unlawful or immoral purposes. It thus has a wide meaning, though what these immoral
purposes could be is not defined. The punishment provided is severe - trafficking is punishable
by death or by life imprisonment between ten to twenty years31. This is the harshest punishment
for trafficking among the States in this Study. There is also a section penalizing 'sexual
oppression,' but since the phrase has not been defined, it is not possible at this stage to speculate
on its scope and application.
Child trafficking for similar purposes carries with it the punishment of death or
life imprisonment. For the purposes of the statute, a child is defined as a person below sixteen
years of age. However, there is a draft National Child Policy, 2010, on the anvil which is not yet
in force but which defines a child as below the age of eighteen. Other provisions which
specifically deal with children include the penalty for damaging the organs of a child for beggary
or sale .58
In addition to substantive provisions, procedure also plays an important role in the
Act. There are provisions to expedite prosecution by imposing time limits and setting up special

57
Nari o Shishu Nirjatan Domon is what the name originally reads in the vernacular (Bangla/ Bengali).
See generally Shruti Pandey, Legal Framework on Trafficking in Persons in SAARC Region, Draft Study
Report, UNIFEM (2007)

58
Section 12

69
tribunals.59 This is much needed in a situation where prosecutions may not succeed and
traffickers go scot free if there are delays in prosecution. Evidence may be mislaid, and victims
of the crime of trafficking may not be traceable.
Victim rescue and rehabilitation provisions are also there, including measures for
non disclosure of the victim's identity. This is important, as the victim needs to be rehabilitated,
and that will not easily happen in current Bangladeshi society if it becomes known that the
person was a victim of trafficking for commercial sexual exploitation. In camera proceedings are
also mandated by the statute. Although it was available even prior to this law at the discretion of
the courts, it was not made applicable in all cases.
3.9 Women & Children Prevention Act, 2000
Section 5 Provided that Criminalizes the trafficking of women for prostitution or other unlawful
or immoral purpose and makes it a capital offence punishable by death sentences or by life
imprisonment.
Section 7 Provided that punishment for kidnapping.
Section 10 Provided that penalizes sexual oppression of women and children.
Section 12 Provided that penalizes for damaging the organ of children for begging.
3.10 MISCELLANEOUS LEGISLATIONS RELEVANT TO
TRAFFICKING
Bangladesh has also made provisions in other penal laws to deal with trafficking.
Some of these provisions in penal laws have existed prior to its Independence; others have been
added post Independence. In addition, there are other laws which have a close bearing on
addressing trafficking as viewed in the UNTOC read with the Trafficking Protocol.
Broadly speaking these legislations deal with a number of themes such as
children/ juvenile justice and protection, foreign employment/ regulating of foreign job

59
Sections 18 and 20. The Government of Bangladesh has appointed 42 Special Tribunals in 33 Districts under this
Act and a Special Judge has been appointed in each Tribunal for trial of cases relating to violence against women
and children including trafficking in women and children. There have been 42 Special Public Prosecutors
designated in each of these Tribunals for conducting these cases (Source- Regional Study for the Harmonization of
Anti Trafficking Legal Framework in India, Bangladesh and Nepal with International Standards, op. cit. May 2007
at 282).

70
placement agencies, child labor, bonded labor/ indentured labor/ pledging of persons for labor
and extradition.
These legislations also deal with the criminalizing of a number of offences
including procuring, buying and selling of human beings, importing or exporting human beings,
buying and selling minors, kidnapping, abducting and using force for the purpose of trafficking,
slavery and slavery like conditions, servitude, bondage and unacceptable forms of labor and
other.
3.11 TRAFFICKING & ORGANIZED CRIME DEFINED BY THE LAW OF
BANGLADESH
For the purpose of understanding cross border trafficking, especially in the
context of organized crime, there are two definitions that need to be analyzed, viz., 'trafficking'
and 'organized crime.' How Bangladesh defines and engages with these two terms provides an
understanding of the rubric of legal protection to combat trafficking as an organized crime in
Bangladesh.
In order to weigh the definitions that Bangladesh has, since all the countries
which are part of this study are part of the South Asian Association for Regional Cooperation,
the definitions under SAARC will also be studied.
3.12 TRAFFICKING DEFINITION
UN Convention Against Transnational Organized Crime and the Trafficking
Protocol
The definition of trafficking under Article 3 of the Protocol to Prevent, Suppress
and Punish Trafficking in Persons, Especially Women and Children, supplementing the United
Nations Convention against Transnational Organized Crime, 2000,60 covers 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 receiving of payments or benefits to achieve the
consent of a person having control over another person, for the purpose of exploitation.
Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other

60
Herein after referred from U N Protocol

71
forms of sexual exploitation, forced labor or services, slavery or practices similar to slavery,
servitude, or the removal of organs.
It further clarifies that the consent of a victim of trafficking in persons, to the
intended exploitation, is irrelevant where the means specified above have been used.61 Also,
where a child is concerned, the recruitment, transportation, transfer, harbouring or receipt of a
child for the purpose of exploitation shall be considered trafficking,62 even if it does not involve
any of the means laid down in the definition of trafficking.
3.13 The South Asian Association for Regional Cooperation
The SAARC Convention63 adopted unanimously by Bangladesh, Bhutan, India,
Maldives, Nepal, Pakistan and Sri Lanka, which is relevant for cross border trafficking in South
Asia also, has defined trafficking. However, it is a limited definition which only covers
trafficking for commercial sexual exploitation. Trafficking is defined as the moving, selling or
buying of women and children for prostitution within and outside a country for monetary or
other considerations, with or without the consent of the person subjected to trafficking.64
3.14 Domestic Law of Bangladesh
The Women and Children Repression Prevention Act, 200065 defines trafficking of women as
covering these acts if they were done with the intention of engaging in prostitution or illegal or
immoral acts
(A) Bringing in women or children from abroad or sending them out of the country.
(B) Dealing in the purchase and sale of women and children or hiring them out or handing them
over for torture or for similar purposes.
(C) Keeping women and children in possession or custody for such purpose.

3.15 ORGANIZED CRIME DEFINITIONS

61
Article 3(b) Ibid
62
Article 3 (c) Protocol
63
South Asian Association for Regional Cooperation (SAARC) Convention on Preventing and Combating
Trafficking in Women and Children for Prostitution, 2002.
64
Article I
65
Translated from the original Nari o Shishu Nirajaton Domon Ain, 2000, as cited in Shruti Pandey, Legal
Framework on Trafficking in Persons in SAARC Region, Draft Report, UNIFEM 2007.

72
3.15.1 UN Convention Against Transnational Organized Crime and the
Protocol
Under the United Nations Convention Against Transnational Organized Crime, 2000, 66
Organized criminal group67 has been defined as a structured group68 of three or more persons,
existing for a period of time and acting in concert with the aim of committing one or more
serious crimes or offences established in accordance with this Convention, in order to obtain,
directly or indirectly, a financial or other material benefit.
3.16 The South Asian Association for Regional Cooperation
3.16.1 Domestic Law of Bangladesh
Bangladesh does not have legislations dealing with organized crime particularly,
but the Penal Code, 1860,69 does list provisions having a crucial bearing on organized crime.
These include provisions on common intention to commit an offence, 70 criminal conspiracy71 and
abetment.72 The Penal Code also has a number of provisions dealing with anti-corruption73 and
punishing public servants for taking gratification other than the legal remuneration they are
entitled to. This last provision could be useful in dealing with cases of official complicity which
have often been alleged in cases of trafficking.
3.17 CASE LAWS ON TRAFFICKING: LANDMARK JUDICIAL
PRONOUNCEMENT HAVING A BEARING ON HUMAN TRAFFICKING
Other than looking at provisions in constitutions and legislations, case law built
up by courts are also part of the domestic law. Case law provides an important insight into the
direction that the law is taking and the interpretation courts may have on any given provision of
law. Trafficking offences are highly dependent on the subordinate/ lower judiciary to determine

66
Hereinafter referred to as UNTOC.
67
Article 2(a) of the United Nations Convention Against Transnational Organized Crime, 2000.
68
Further defined in Article 2 (c) UNTOC to mean a group that is not randomly formed for the immediate
commission of an offence and that does not need to have formally defined roles for its members, continuity of its
membership or a developed structure.
69
http://bdlaws.gov.bd/pdf_part.php?id=11(accessed on March 2017)
70
Section 34 Penal Code, 1860.
71
Sections 120A and 120B Penal Code, 1860.
Sections 107-120 Penal Code, 1860
73
Anti Corruption provisions in the Bangladesh Penal Code, 1860.

73
convictions, and the lower judiciary is bound by judicial pronouncements of the higher courts
which lay down policy, guidelines and interpretations.
Decisions by higher courts in Bangladesh have been few, but they have been
significant in the context of cross border trafficking and the rights of victims of trafficking.
Courts in Bangladesh have had cases both on protection as well as prosecution.
Bangladesh Society for the Enforcement of Human Rights (BSEHR) vs
Government of Bangladesh and Others74 saw certain specific rights of sex workers being
recognized. The case was in response to a 'raid and rescue' operation carried out by the police.
Specifically, it was a brothel raid in the night when police barged into rooms and dragged
residents away. Adult women and children were physically assaulted, loaded into vehicles and
kept against their will at government homes. They claimed that they were subjected to indignities
and despite their objections were kept there. A Public Interest Litigation was filed on behalf of
the women and children by a group of organizations working with sex workers. While there was
no allegation of trafficking in this case, it is an important case from the point of view of women
who are victims of trafficking and continue in prostitution, as it recognizes first and foremost that
they have the same right to life and personal liberty as does any other citizen of Bangladesh. The
court pointed out that 'prostitution' by itself was not illegal, and though there was a
Constitutional mandate to take effective measures to prevent prostitution, it was not to be done
by violating rights. The court also upheld the right to privacy and dignity of all people.
While this was a decision which was from the point of view of the marginalized
in the case, it was by no means the only one to look at facts through that lens. In Abdul Gafur vs.
Secretary, Ministry of Foreign Affairs, Govt of Bangladesh,75 a fifteen year old Bangladeshi girl
had disappeared from her village. After four years, the family found out that she had been
abducted by child traffickers and had been sold in India, she was subsequently rescued and was
now residing at a state run women's home in West Bengal. Her father wrote to the government of
Bangladesh asking authorities to take steps for her repatriation, but the government remained

74
Bangladesh Society for the Enforcement of Human Rights (BSEHR) v. Government of Bangladesh and Others 53
DLR (2001).

75
Abdul Gafur v Secretary, Ministry of Foreign Affairs, Govt of Bangladesh 17 (1997) BLD (HCD) 560.

74
unmoved. Finally, he filed a writ petition in court requesting the court to direct the concerned
government department to act.
This is an important test case as in most cases of cross border trafficking, it is
very difficult for victims or their kin in Bangladesh to access the criminal justice system in India,
or even to approach the Indian government to make a request for repatriation, etc. The
appropriate mechanism should be the domestic one, which will then get in touch with the Indian
counterpart. The father of Hasina, the girl in this case, had done exactly that but received no
response. He claimed that Hasina, as a Bangladeshi citizen, was entitled to all protection as a
citizen despite the fact that she was in a different country, as she had not left of her own volition,
but had been forcibly taken. It was stated in the petition that the girl was entitled to the protection
of Articles 27, 31 and 32 of the Constitution. It is suggested that even if a person had left of her
own will, being allured by promises of work or seduced by marriage, the duty of the government
of Bangladesh would in no way diminish. The court here directed the government department to
follow up the matter and work towards the repatriation of Hasina.
In the above case, the Supreme Court of Bangladesh clearly recognizes
repatriation as a fundamental right and lays emphasis on the State's responsibility in ensuring
repatriation of trafficked victims.
Another question which arose in this case was whether trafficking in this case was
child trafficking or trafficking of an adult woman. Since the incident happened when she was a
child, the court held that it should be considered a case of child trafficking. However, the court
also held that if she continued to be trafficked several times during the course of her stay in
India, there would be separate offences of child/ adult trafficking as the facts indicated.

3.18 NEPAL
Nepal is primarily considered a country of origin - a source for the trafficking of
men, women and children. The girls end up in brothels in India or Pakistan or in Middle Eastern
or South Asian countries.76 Nepal's concerns are largely that persons go to India without proper
papers quite legitimately, and it is difficult to differentiate between a legitimate and non-
legitimate reason. It has no way of keeping tabs on its citizens wherever they may be. Victims of

76
When Victims Become Accused, Times of India, 13 October 2003

75
trafficking from Nepal move to India or the Middle East or even to Europe. Women and girls are
also trafficked to other Asian destinations.77
There is voluntary migration as well to countries other than India. Victims
subsequently may be trafficked or exploited by not being paid wages, or being paid at a lower
rate than agreed. Their passports may be withheld and they may suffer physical and sexual
abuse. Recruitment agencies may charge unconscionably high sums as commissions for placing
them in a job. Some traffickers may give the family an advance to pay off a loan, and then the
victim is forced to perform labor to repay it, often with little or no pay.78
Within Nepal, there has been some attention on the foreign child sex tourism trade
within the country. Nepal also has a system of bonded labor where entire families may be
bonded and forced to work in a range of occupations. This is especially so among lower castes
and socially marginalized groups, who are particularly vulnerable to dominance and exploitation.
Movement of persons is from Nepal to India, which is quite easy considering the
long border it has with India. There are fourteen legal entry points, but illegal cross border
movement without documents takes place quite easily. Since India has an open border policy
with Nepal, Nepalese have free access to enter India, and therefore trafficking becomes difficult
to identify.79
Nepal's concerns also include making it less economically lucrative to go to India
by providing alternatives within Nepal. Considering the poverty, the lack of educational
opportunities and work opportunities available in Nepal, these concerns need to be addressed in
order to tackle push factors which make vulnerable men, women and children victims of
trafficking.

3.19 CONSTITUTIONAL PROTECTIONS AND TRAFFICKING

Nepal is going through a transitional phase currently, with the system of
monarchy now abolished. There is an Interim Constitution in place, but a final Constitution is
still in the process of being drafted. Since trafficking is a priority issue in the country, the Interim
Constitution deals with it as summarized below.

77
Including Malaysia, Hong Kong and South Korea
78
Trafficking in Persons Report, 2010, United States Department of State, 14 June 2010 sourced from
http://www.unhcr.org/refworld/docid/4c1883c52d.html (Accessed on March 2017)
79
Adapted from Trafficking in Women and Children in India, Orient Longman, New Delhi (2005) pdf.

76
 The Interim Constitution of Nepal, 200780 addresses all forms of trafficking
against human beings by its broad prohibition of trafficking in Article 29. It deals with all forms
of forced labor, again broadly. In an attempt to break existing patterns of indebtedness, it
abolishes serfdom. Slavery is a gross violation of human rights, and that too is specifically
covered under this provision. The provisions of Nepal's Constitution are still being discussed, but
considering the attention given to the problem of trafficking in its recent past, there is every
indication that the Constitution, when its draft is finalized, will seek to effectively deal with
trafficking in human beings.
3.20 TRAFFICKING IN PERSONS AND TRANSPORTATION (CONTROL)
ACT, 2007
Nepal's Trafficking in Persons and Transportation (Control) Act, 2007, aims at
preventing trafficking in persons in Nepal and also cross border trafficking from Nepal. The
outstanding feature of the legislation is the procedure laid down for prosecution as well as
protection. Unique features have been built into the enactment to make discharging the burden of
proof easier which theoretically should lead to more convictions. While usually raids are
conducted using information given to the police, very often people who are aware of trafficking
may be reluctant to come forward to identify themselves for fear of retribution. Keeping in mind
that traffickers may be from among the powerful elements in society, this caution is
understandable. Informers may also be reluctant to come forward with their testimony for the
same reason. The Act protects whistle blowers and protects their identity.81
This may go a long way in encouraging people to come forward if they know of
any incidents of trafficking. Similarly, informant's identity, even from within the rings of
trafficking, is kept confidential, as is the identity of the trafficked person. 82Publicity is usually
shunned by those who have been trafficked, especially those who have been trafficked for
commercial sexual exploitation, as they would ideally like to be reunited with families and
communities who may not accept them back if the truth is known. It also makes rehabilitation
under the Act much easier.

80
www.unmin.org.np/.../Interim.Constitution.Bilingual.UNDP.pdf (accessed on march 2017)
81
Section 5
82
Section 25

77
 In order to make it easier to prove the offence, the burden of proof is shifted from
the prosecution to the accused, presumably when a prima facie case is made out. Since getting
witnesses to testify is difficult in prosecution of trafficking cases and also because gathering
proof in cross border cases is a daunting task, a shifting of the burden of proof makes the
prosecutor's job easier.83 Also, the testimony of a trafficked person which is authenticated in
court is sufficient evidence even if she does not appear before the court further in the case. Such
evidence is admissible and will go a long way in preventing witnesses turning hostile and will
also shorten trials.
Usually in criminal cases, only the defense has a right to counsel who will
represent him/ her. However, the statute provides that the victim of trafficking would also be
represented by a counsel. This would go a long way in ensuring that the trafficked person's other
rights under this statute would be well protected. Having a representative who is competent in
legal matters may do a lot to bolster the confidence of a trafficked person. A similar empowering
provision is the right to have a translator. Usually victims find themselves at a double
disadvantage; firstly, they may not be aware of legal procedures and, secondly, they may not
understand the language the proceedings are in and would not be able to judge whether what they
say is being accurately presented. With a counsel and translator, they will be in a position to
know what is happening and how best to ensure that their interests would be protected. In camera
trials are specifically provided in the Act, and while it was earlier discretionary, it was not
followed in many cases. With its specific inclusion in the Act, in camera trials will help maintain
confidentiality and protect the identity of those involved. It will also prevent to some extent the
intimidation of prosecution witnesses.
Rescue and rehabilitation provisions abound in the Act. A positive duty has been
cast upon the State to rescue victims of cross border trafficking84 and also to rehabilitate them.
Police protection and also accommodation at a rehabilitation centre must be provided if required.
85
Compensation is to be provided to victims of trafficking86, regardless of the conviction of

83
Section 9
84
Section 13
85
Section 26
86
Section 17

78
offenders, and a rehabilitation fund is required to be established by the government to take care
of this.87

3.21 MISCELLANEOUS LEGISLATIONS RELEVANT TO

TRAFFICKING
In addition to the specific legislation on trafficking, Nepal has a number of
legislations and codes enacted at different points of time and dealing with a number of issues.
Broadly speaking, these legislations deal with a number of themes, such as Children, Foreign
employment/ regulating of foreign job placement agencies, Bonded labor/ indentured labor/
pledging of persons for labor, and Registration of births, deaths or migration.
These legislations also deal with criminalizing a number of offences not
specifically dealt with in the Trafficking in Persons and Transportation (Control) Act, 2007.
These include penalizing procuring, buying and selling of human beings, importing or exporting
human beings, buying and selling minors, servitude, bondage and unacceptable forms of labor,
and others.
3.22 TRAFFICKING AND ORGANIZED CRIME DEFINED BY LAW
For the purpose of understanding cross border trafficking, especially in the context of organized
crime, there are two definitions that need to be analyzed, viz., 'trafficking' and 'organized crime.'
How Nepal would define and engage with these two terms gives us an understanding of the
rubric of legal protection given to combat trafficking as an organized crime.
In order to weigh the definitions that Nepal has, the definitions under SAARC
will also be studied, since all the countries under this study are part of the South Asian
Association for Regional Cooperation (SAARC).
3.23 TRAFFICKING DEFINITION
3.23.1 UN Convention Against Transnational Organized Crime (UNTOC) and
the Protocol
The definition of trafficking under Article 3 of the Protocol to Prevent, Suppress
and Punish Trafficking in Persons, Especially Women and Children, supplementing the United

87
Section 14

79
Nations Convention against Transnational Organized Crime, 2000,88 covers the recruitment,
transportation, transfer, harboring or receipt of persons, by means of threat or use of force or
other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a
position of vulnerability, or of the giving or receiving of payments or benefits to achieve the
consent of a person having control over another person, 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 labor or services, slavery or practices similar to slavery,
servitude, or the removal of organs.
It further clarifies that the consent of a victim of trafficking in persons to the
intended exploitation is irrelevant where the means specified above have been used. 89 Also,
where a child90 is concerned, the recruitment, transportation, transfer, harboring or receipt of a
child for the purpose of exploitation shall be considered trafficking even if it does not involve
any of the means laid down in the definition of trafficking.91
3.24 South Asian Association for Regional Cooperation (SAARC)
Convention on Preventing and Combating Trafficking in Women and
Children for Prostitution, 2002
The SAARC Convention92 has defined trafficking. However, it is a limited
definition which only covers trafficking for commercial sexual exploitation. Trafficking is
defined as the moving, selling or buying of women and children for prostitution within and
outside a country for monetary or other considerations with or without the consent of the person
subjected to trafficking.
3.25 DOMESTIC LAW OF NEPAL

88
Herein after referred to as protocol
89
Article 3(b) Ibid.
90
A 'child' is any person under eighteen years of age (Article 3(d) Protocol)
91
Article 3 (c) Protocol
92
South Asian Association for Regional Cooperation (SAARC) Convention on Preventing and Combating
Trafficking in Women and Children for Prostitution, 2002 .

80
The Trafficking in Persons and Transportation (Control) Act, 2007, defines trafficking as
including the following actions:93
(1) Selling or buying person for any purpose.
(2) Engaging a person in prostitution with or without purpose.
(3) Having sexual intercourse with prostitute.
(4) Removing, except as permitted by law, organs of any person
The Act also deals with 'transportation' which also covers some elements of trafficking.
Transportation is committed by:
(1) Taking a person to a foreign country with a view to selling or buying the person;
(2) Taking a person away from a home or person having control over such person, to another
place within Nepal or to a foreign country, or handing over a person by enticing, alluring, or
abducting or by misrepresentation, fraud, deception, force or coercion, or by taking hostage or
taking advantage of the vulnerability of a person, or by making a person unconscious, abusing
post or power, or alluring, causing fear, giving threat or coercing the parent or guardian, in order
to cause such person to be engaged in prostitution or exploitation.
The Act was an improvement on the earlier Muluki Ain which, while identifying
different forms of trafficking which were punishable by law, did not define trafficking.94

3.26 ORGANIZED CRIME DEFINITION

UNTOC AND PROTOCOLS
Underthe United National Convention Against Transnational
Organized Crime, 2000
Organized criminal group95 has been defined as a structured group of three or
more persons, existing for a period of time and acting in concert, with the aim of committing one

93
Adapted from http://www.unodc.org/pdf/india/Nat_Rep2006-07.pdf accessed on 12 July 2010 and Shruti Pandey,
Legal Framework on Trafficking in Persons in SAARC Region: Draft Study Report (unpublished) UNIFEM 2007
( report taken from website)
94
For a list of offences covered in the Muluki Ain, i.e., the Country Code, 1963, refer to the sub-section on
Miscellaneous Trafficking Legislations. ( report taken from website)

95
Further defined in Article 2 (c) UNTOC to mean a group that is not randomly formed for the immediate
commission of an offence and that does not need to have formally defined roles for its members, continuity of its
membership or a developed structure. ( definition taken from united nation webpage)

81
or more serious crimes or offences established in accordance with this Convention, in order to
obtain, directly or indirectly, a financial or other material benefit.
3.27 SAARC
There is no definition of organized crime in either the SAARC Convention on Mutual Assistance
in Criminal Matters, 2008, or the South Asian Association for Regional Cooperation (SAARC)
Convention on Preventing and Combating Trafficking in Women and Children for Prostitution,
2002.
3.28 DOMESTIC LAW OF NEPAL
Nepal has recently drafted laws dealing with corruption. The Prevention of Corruption Act,
2002,96 has a number of provisions relating to offences of corruption and provides punishments
for the same. Sections 3 to 8 specifically cover different situations of bribe and graft taken by
public servants. Both the giver and the taker of graft are punishable by law.97
3.29 CASE LAWS ON TRAFFICKING: LANDMARK JUDICIAL
PRONOUNCEMENTS HAVING A BEARING ON HUMAN
TRAFFICKING
Other than looking at provisions in constitutions and legislations, case law built
up by courts are also part of the domestic law. Case law also provides an important insight into
the direction that the law is taking and the interpretation the courts may have on any given
provision of the law. Trafficking is highly dependent on the subordinate/ lower judiciary to
determine convictions, and the lower judiciary is bound by judicial pronouncements of the higher
courts which lay down policy, guidelines and interpretations.
Nepal has had one important case which strengthened prosecution. The
prosecution depended on proving whether trafficking had taken place or not as in this particular
case, the girl was rescued before she was taken away. In Permanent Resident v HMG on the FIR

96

http://www.ciaa.gov.np/nepali/jhola/Anti_Corruption_2002.doc accessed on 10 July 2010 where an unofficial translation is

found.

Section 3- Punishment to giver and taker of graft. Where the taking is for himself to perform or forbear to perform an act. It also covers
situations

97
Section 3

82
of Tara Devi Dahal,98 Tara Devi was allured by a man who promised to marry her with the help
of his partner. She was taken across the Nepal border into India where she stayed for some time
in a hotel with him. He had sexual intercourse with her on the pretext of marrying her and then
took her to Patna where she was sold to a brothel owner for Sixteen Thousand Indian rupees. The
girl shouted and screamed, and the police was alerted, and she was rescued. The question was
whether a crime had been committed under the Human Trafficking Activities (Control) Act for
the sale of the woman abroad since the sale did not actually go through. Nevertheless, the act
amounted to trafficking. In obiter, the court also said, In a case like human trafficking, the
statement of the victim-complainant needs to be considered trustworthy until otherwise proved
by the defendant. The court then upheld the sentencing which had been pronounced by the
lower court.99
In Urmila Thapa Magar,100 a woman, who claimed to be trafficked, had agreed to
go with an acquaintance to another part of Nepal. However, the intention was to cross the border.
A timely police check prevented cross border trafficking. When the case came before the courts
in Nepal which had jurisdiction over the matter, the question was whether there was cross border
trafficking or not. This was an important issue, as the woman continued to remain within the
territory of Nepal and had not crossed into India. The court held that the crime of cross border
trafficking which had a higher penalty in the laws in Nepal would be considered proved if - one,
trafficking is proved and, two, if it can be shown that trafficking was for the purposes of taking
the person to another country. This was sufficient, and there was no need for the person to
actually be taken across the borders of Nepal.
Cases of timely intervention by police or border patrols, and apprehension of
traffickers thereto, would provide for cases of thwarted attempts of cross border trafficking
within Nepal to be tried by Nepali courts as cross border trafficking. Criminal syndicates
involved on both sides of the border, if apprehended, could also be tried in Nepal, assuming of
course that they are apprehended in Nepal.

98
Criminal Case No. 1042 of 2051 BS
99
Adapted from Landmark Decisions on Violence Against Women and Children in South
Asia,SARI/EQUITYavailableathttp://www.childtrafficking.com/Docs/judge_woman_childvio
_0607.pdf
100
Urmila Thapa Magar v. Krishna Prasad Pudasaini Criminal Appeal no 1610 of the Year 2051 BS

83
 Nepal has taken a number of steps including legislation to strengthen anti-
trafficking measures. It must focus on strengthening implementation by ensuring prosecutions
and other measures for different forms of trafficking including labor trafficking. Community
based initiatives must be developed in order to combat the problem at the grassroots.

3.30 SRI LANKA

Sri Lanka is primarily a source country with men, women and children being
trafficked primarily for labor and also for commercial sexual exploitation, including domestic
child sex tourism.101 While the civil strife within the country has received a lot of attention and
quite rightly so, the problem of trafficking has been relegated to a backseat. Trafficking is a real
concern, and though there are some steps that have been taken, a lot more needs to be done in
order to prevent the gross violations of rights of men, women and children. Due to the internal
conflict, children have been recruited, sometimes forcibly, as soldiers by the LTTE. There may
also be a small but significant trafficking of women into Sri Lanka from countries such as
Thailand, China and the members of the former USSR for commercial sexual exploitation.
There are also recent concerns about trafficking for employment to the Middle
East102 as well as Singapore among other countries. Men and women are offered jobs as domestic
workers, construction labor or in other factories like garments. On arriving abroad, their
passports or other travel documents are withheld from them, and some terms of employment may
be breached. While they are offered lucrative jobs in order to get them to migrate for labor, they
may not receive their just dues. Again, labor recruitment agencies may charge disproportionate
fees for such employment. There have been raids on fraudulent recruiting agencies, and legal
action has been taken in many cases which involved suspension of licenses. However, there were
no large scale prosecutions on trafficking.
Despite arrests and initiation of prosecutions, there have been no significant
convictions. A national policy was drafted on migration, and there were proposals to set up a
national anti-trafficking task force. A National Task Force on Human Trafficking has been set up

101
Adapted from Global Report on Trafficking in Persons as well as the Trafficking In Persons Report, 2010, United
States Department of State, 14 June 2010 sourced from http://www.unhcr.org/refworld/docid/4c1883c52d.html
(visited on March 2017)
102
Kuwait, Jordan, Saudi Arabia, Qatar, Lebanon, United Arab Emirates (UAE), Oman and Bahrain.
gov.lk/Acts/2005/Women%20and%20Children%20Act%20No.%2030%20of%202005/ (visited on March 2017)

84
in partnership with the International Organization for Migration to support successful
prosecutions and protect victims. The National Child Protection Authority would also play a role
in protecting children from abuse and exploitation.103 The law itself has undergone changes on
trafficking, since 1844 when slavery was abolished to the landmark amendment in 2006, to its
Penal Code which prohibited several forms of trafficking and prescribed stringent punishments
for the same on par with the punishment for other grave offences like rape. The Parliament has
also passed the Convention Preventing and Combating Trafficking in Women and Children for
Prostitution Act, 2005, but it has not yet come into force.104 When it does, it will create legal
provisions to give effect to the SAARC Convention.
Protection has seen continuation of access to protective services made available
by NGOs or international organizations. The government also has limited services for the same,
including counseling for child trafficking victims. There have been rescued foreign victims as
well. While victims were encouraged to participate in proceedings against their traffickers,
because of the slow pace of the justice delivery system, there has not been enough cooperation.
On prevention, several awareness programmes were conducted among different
interest groups. A policy on migration has been drafted to protect workers moving abroad and an
interagency task force is also being proposed .For protecting women and children, the police also
has a bureau in Colombo dealing with cases on women and children, including cases on
trafficking. Sri Lanka's concerns have thus been towards tackling trafficking by amending laws
and regulating migration.
3.31 CONSTITUTIONAL PROTECTION AND TRAFFICKING
The Sri Lankan Constitution is a written Constitution which contains two
provisions specifically on trafficking. Both provisions are on trafficking of children. The chart
below summarizes the provisions.
The Constitution of Sri Lanka places an obligation on the State to protect children
and to take concrete action to ensure such protection. Details of punishing trafficking are dealt
with by legislation and are covered subsequently .Unlike other Constitutions in the study, the Sri
Lankan Constitution does not mention trafficking for forced labor in any form.

103
Created under the National Child Protection Authority Act, 1998
104
http://documents.gov.lk/Acts/2005/Women%20and%20Children%20Act%20No.%2030%20of%202005/PL%200
00372%20Wamen%20and%20Chil dren%20(E).pdf. (accessed on March 2017)

85
 The Sri Lankan Constitution contains provisions dealing with trafficking and has
a language different from that of the other States in the study. It couches the protection in terms
of the State's obligation to protect children. Its protection is thus limited only to one group which
may be trafficked. Children under Article 27(13)105 of the Constitution of Sri Lanka must be
protected against all harm, including by implication trafficking. Article 12(4) 106 further implies
that the State must take action in order to ensure such protection to children. The Constitution
places emphasis on the duty of the State to actively protect children.
3.32 THE CONVENTION ON PREVENTING AND COMBATING
TRAFFICKING IN WOMEN AND CHILDREN FOR PROSTITUTION
ACT, 2005
Although there is an Act in Sri Lanka which is specifically on trafficking, though limited to
women and children in prostitution, it has not yet been notified and cannot be used in cases of
trafficking. Sri Lanka thus, at the moment, has no legislation in force specifically on trafficking.
It has a number of miscellaneous legislations which are relevant to trafficking.107
3.33 MISCELLANEOUS LEGISLATION RELEVANT TO TRAFFICKING
In the case of Sri Lanka, because of the absence of a separate legislation on
trafficking which is currently in force, and pending the notification of the Convention on
Preventing and Combating Trafficking in Women and Children in Prostitution Act, 2005,
miscellaneous legislations become even more relevant. Broadly speaking these legislations deal
with a number of themes such as children, foreign employment/ regulating of foreign job

105
Article 27(13) The State shall promote with special care the interests of children and youth, so as to ensure their
full development, physical, mental, moral, religious and social, and to protect them from exploitation and
discrimination. The National Child Protection Authority Act, 1998, also seeks to provide mechanisms to protect
children from abuse and exploitation. No specific mention of trafficking has been made, although trafficking would
fit within the meaning of abuse and exploitation.
106
Article 12(4) Nothing in this Article shall prevent special provision being made by law, subordinate
legislation or executive action, for the advancement of women, children or disabled persons.
107
There is the Convention on Preventing and Combating Trafficking in Women and Children for Prostitution Act,
No.30of2005available at
http://documents.gov.lk/Acts/2005/Women%20and%Children%20Act%20No.%2030%20of%202005/PL%2000037
2%20Women%and%Children%20
(E).pdf

86
placement agencies, child labor, bonded labor/ indentured labor/ pledging of persons for labor
and immigration/ emigration.
These legislations, especially in the form of the Penal Code, also deal with
criminalizing of a number of offences not specifically dealt with in the specific laws on
trafficking. These include penalizing acts, such as procuring, buying and selling of human
beings, importing or exporting human beings, buying and selling minors, servitude, bondage and
unacceptable forms of labor, adoption of children (unless done in the manner prescribed by law),
breach of border control norms and procedures, and others.
3.34 TRAFFICKING AND ORGANIZED CRIME DEFINED BY THE LAW
For the purpose of understanding cross border trafficking, especially in the context of organized
crime, there are two definitions that need to be analyzed, viz., 'trafficking' and 'organized crime.'
How different countries define and engage with these two terms gives us an understanding of the
rubric of legal protection given to combat trafficking as an organized crime. In order to weigh
the definitions that each country has, the definitions under SAARC will also be studied, since all
the countries under study are part of the South Asian Association for Regional Cooperation.
3.35 TRAFFICKING DEFINITION
UN Convention Against Transnational Organized Crime and the Protocol
The definition of trafficking under Article 3 of the Protocol to Prevent, Suppress and Punish
Trafficking in Persons, Especially Women and Children, supplementing the United Nations
Convention against Transnational Organized Crime, 2000,108 covers the recruitment,
transportation, transfer, harboring or receipt of persons, by means of the threat or use of force or
other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a
position of vulnerability, or of the giving or receiving of payments or benefits to achieve the
consent of a person having control over another person, 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 labor or services, slavery or practices similar to slavery,
servitude, or the removal of organs.
It further clarifies that the consent of a victim of trafficking in persons, to the
intended exploitation, is irrelevant where the means specified above have been used.240 Also,

108
Hereinafter referred to as Protocol

87
where a child is concerned, the recruitment, transportation, transfer, harboring or receipt of a
child for the purpose of exploitation shall be considered trafficking, even if it does not involve
any of the means laid down in the definition of trafficking.109
3.36 South Asian Association for Regional Cooperation (SAARC)
Convention on Preventing and Combating Trafficking in Women and
Children for Prostitution, 2002
The SAARC Convention adopted unanimously by Bangladesh, Bhutan, India, Maldives, Nepal,
Pakistan and Sri Lanka, which is relevant for cross border trafficking in South Asia also, has
defined trafficking. However, it is a limited definition which only covers trafficking for
commercial sexual exploitation. Trafficking is defined as the moving, selling or buying of
women and children for prostitution within and outside a country for monetary or other
considerations, with or without the consent of the person subjected to trafficking.
3.37 DOMESTIC LAW OF SRI LANKA110
The domestic law of Sri Lanka first does not have in force a separate legislation on Trafficking.
A definition of trafficking is absent although many acts which amount to trafficking have been
penalized, some by recent amendments in 2006. Section 360C of the Penal Code introduces the
elements of trafficking including buying, bartering, selling or abetting the same. Recruitment,
transfer, harboring, receipt of persons for certain purposes111 of trafficking is also punishable.
Several other provisions in the Penal Code also deal with different aspects of trafficking
including buying, selling, bartering, inducing someone else to do so for money or other
consideration and using force, fraudulent means, etc., to do so. Purposes covered under the Penal
Code, 1883, range from prostitution and sexual exploitation, to begging, to compulsory labor,
slavery, servitude and serfdom among others.112
3.38 Organized Crime Definitions

109
Article I
110
Adapted from Coomaraswamy, Radhika and Ambika Satkunanathan: Anti-child Trafficking Legislation in Asia:
A Six-country Review (Bangladesh, Nepal, Pakistan, Sri Lanka, Thailand and Indonesia). International Labor
Organisation. 2006 p. 81-82.
111
For securing forced or compulsory labour or sevices, slavery, servitude, the removal of organs, prostitution or
other forms of sexual exploitation or any other act which constitutes an offence under any law.
112
See Table on Trafficking Legislations in Sri Lanka for details of available provisions ( available on website)

88
South Asian Association for Regional Cooperation (SAARC) Convention
on Preventing and Combating Trafficking in Women and Children for
Prostitution, 2002
There is no definition of organized crime in either the SAARC Convention on Mutual Assistance
in Criminal Matters, 2008, or the South Asian Association for Regional Cooperation (SAARC)
Convention on Preventing and Combating Trafficking in Women and Children for Prostitution,
2002.
3.39 Domestic Law of Sri Lanka
When a criminal act is done by several persons in furtherance of a common intention of all, each
of such persons is liable for that act in the same manner as if it were done by him alone.
113
Whenever an act is criminal only by reason of its being done by criminal knowledge or
intention, is done by several persons, each of such persons who joins in the act with such
knowledge or intention is liable for the act in the same manner as if the act were done by him
alone with that knowledge or intention.
Abetment also deals with cases where different persons engaged in organized
crime may work together doing different tasks. Conspiracy covered in Sections 113A and 113B
covers preparations and attempt to traffic by organized groups which may even be apprehended
before the event takes place.
Corruption, which is an important aspect of organized crime, is also punished
under the Penal Code. Section 158 states: Whoever, being or expecting to be a public servant,
accepts or obtains, or agrees to accept, or attempts to obtain from any person, for himself or for
any other person, any gratification whatever, other than legal remuneration, as a motive or
reward for doing or forbearing to do any official act or for showing or forbearing to show, in the
exercise of his official functions, favour or dis favour to any person, or for rendering or
attempting to render any service or disservice to any person, with the Government of the
Republic or with any public servant, as such, shall be punished with imprisonment of either
description for a term which may extend to three years, or with fine, or with both.114

113
Penal Code, 1883 Section 32 cited from http://www.commonlii.org/lk/legis/consol_act/pc25130.pdf (accessed on
march 2017
114
Other Sections on corruption in the Penal Code include Section 159- Taking gratification in order, by corrupt or
illegal means, to influence public servant ,Section 160- Taking gratification for exercise of personal influence with
public servant ,Section 161- Abetment of the earlier two offences of corruption ,Section 162- Whoever being a

89
3.40 CASE LAWS ON TRAFFICKING: LANDMARK JUDICIAL
PRONOUNCEMENTS HAVING A BEARING ON HUMAN
TRAFFICKING
No judgment on human trafficking was located in the current research; however, there have been
some good decisions in the area of rape law and in offences relating to sexual assault which may
be useful in cases of trafficking.
In Piyasena and others v. the Attorney General, it was held that in a series of
attacks, it would be sufficient if one single charge could be proved by the prosecution to
constitute the offence. In Rajapakse v. The State, it was held that the absence of the accused from
the proceedings in court during the trial would not be fatal to the final outcome of the case if the
accused had remained absent deliberately from the court.
While there is a definition of trafficking in the Penal Code, the special law
existing on trafficking should be notified, so that it can come into effect and be used. There
needs to be a better system of cooperation built up to deal with cases of cross border trafficking.
The lack of reported cases shows that many stakeholders including the judiciary and the public
prosecutors may need to be trained on this issue.
3.41 GAPS EXAMINED WITHIN THE PROSECUTION-PROTECTION-
PREVENTION MATRIX
Key gaps in the legal framework of the region including Bangladesh have an impact on all three
areas of prosecution, protection and prevention. These include:-
(1) Non ratification of UNTOC and Protocols which is a major stumbling block as many
enabling provisions of these instruments cannot be availed of.
(2) Lack of a comprehensive definition of trafficking, either as a common minimum platform for
the States to work on with each other, or even for punishing all forms of trafficking within the
countries. The Women and Children Repression Prevention Act, 2000, does not give a
comprehensive definition and is restricted to a few forms of trafficking.

public servant knowingly disobeys any direction of the law as to the way in which he is to conduct himself intending
to cause or knowing it to be likely that he will cause injury to any person or to the government.
Adapted from
http://www.commonlii.org/lk/legis/consol_act/pc25130.pdf) accessed on
march 2017

90
(3) Gender sensitivity is missing even though there are laws for women. This does not translate
into a sensitive law, at least in its working, as commercial sex workers also get booked under
trafficking law. Victims may be re-victimized during the procedure, and some who are
prosecution witnesses may turn hostile.
3.42 KEY GAPS IN PROSECUTION
(1) There is no uniform definition of who is a child/ minor in terms of age. It varies in different
statutes. The Employment of Women and Young Persons and Children Act, 1956, places a child
as a person below eighteen, while the Women and Children Repression Prevention Act, 2000,
defines a child as a person below sixteen years of age.
(2) Trafficking is not often seen as an organized crime, and provisions relevant to organized
crime are not made use of in trafficking cases although the Bangladesh Penal Code, 1860, does
have provisions relating to common intention to commit an offence, criminal conspiracy, and
abetment.
(3) Cooperation mechanisms are ad hoc or non-existent as far as cross border trafficking is
concerned. This is so especially concerning:
(a) Legal assistance
(b) Providing Information
(c) Transfer of sentenced person
(d) Joint Investigation
(4) Prosecutions overall are not satisfactory, There are no separate courts dealing with issues of
this nature.
(5) Absence of a comprehensive definition of trafficking leaves space for dishonest police
personnel to convert a trafficking case into illegal migration, illegal border crossing, human
smuggling, etc.
3.43 KEY GAPS IN PROTECTION
(1) There is sometimes no adequate distinction drawn between the trafficker and the victims;
e.g., in the case of prostitution or in the case of unsafe migration without documents. Although
there have been cases where courts have ordered rescue, some of those who migrate may not be
treated as Bangladeshis by the country if they don't have documents to prove so.
(2) There is no positive duty cast upon States to provide sufficient shelters or for rehabilitation or
rescue victims of trafficking.

91
(3) Civil remedies in tort law are not used against employers who violate labor standards or force
employment.
(4) Financial support for existing programs is often insufficient.
(5) A conducive atmosphere to make it safe for victims to testify is not created. There is no
witness protection program, either.
(6) The focus is on women and children, with inadequate protection for men.
(7) The focus is also on trafficking for sexual exploitation and punishments for trafficking for
labor do not carry the same weight.
3.44 KEY GAPS IN PREVENTION
(1) Trainings of personnel at different levels are done sporadically, and materials are not revised
systematically.
(2) There are insufficient awareness campaigns and community initiatives, leading to trafficking
or unsafe migration which increases vulnerability to trafficking.
(3) Licensing of recruitment agencies and their monitoring is not satisfactory. Illegal
immigration is often resorted to.
(4) Systems like referrals and identification of support staff and service providers or authorities
at different levels is absent.
(5) Absence of skilled police officers having motivation and adequate training in both pro-active
and reactive investigation to combat organized crime like trafficking.
3.45 GAPS COMPARED WITH PROTOCOL
Bangladesh, Nepal and Sri Lanka has not yet signed the Protocol, so comparison
at this stage would be more meaningful once this is done. The Protocol lays down a universally
acceptable common definition on trafficking and thus must be accepted.
Bangladesh, Nepal & Sri Lanka has undertaken a number of measures which do
comply with all three Statements of Purpose of the Trafficking Protocol. However, the focus of
the legal framework has been on the first, i.e., to prevent and combat trafficking in persons,
especially women and children. To a lesser extent, laws comply with the second objective, i.e., to
protect and assist the victims of such trafficking with full respect for their human rights. While
there are laws penalizing trafficking, 'prostitution' is often targeted which confuses the issue. The
last objective to promote cooperation among States Parties is not really dealt with in domestic

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law, though there have been some initiatives including through government, border authorities
and courts.
While Bangladesh, Nepal & Sri Lanka has a separate law dealing with violence
against women, it does not have a comprehensive legislation on trafficking. There is a long-
standing demand for enactment of a separate and comprehensive law dealing with trafficking
alone. The current law deals only with trafficking for forced prostitution or sexual exploitation.
There are other laws, primarily the Penal Code, which deal with some other aspects of
trafficking. There is no comprehensive definition of trafficking which complies with the
definition under the Protocol.
A definition of organized crime is also lacking. However, this is a limited
drawback as the Penal Code of Bangladesh, Nepal & Sri Lanka covers common intention,
abetment, criminal conspiracy and other forms of criminal activity done as an organized crime.
However, these have domestic application or apply to cases where the domestic courts can
exercise jurisdiction. Not all cross border trafficking may be covered by these provisions.
Bangladesh, Nepal & Sri Lanka has also not ratified the Minimum Age
Convention of the ILO and the Convention Concerning the Prohibition and Immediate Action for
the Elimination of the Worst Forms of Child Labor. This has a direct bearing on the protection of
children under the Protocol.
3.46 KEY RECOMMENDATIONS FOR BANGLADESH, NEPAL & SRI
LANKA
Some recommendations are common to prosecution, protection and prevention. These include:
(1) Ratification of the UNTOC and the Protocols is essential so that there will be a common
blueprint and a common as well as comprehensive legal framework.
(2) In order to have a common understanding of trafficking and also to ensure that all forms of
trafficking are penalized, the definition under the Protocol must be adhered to. Even if this is not
done under one comprehensive law on trafficking, it must be woven into existing legislations.
(3) There must be a greater sensitivity to the violations of rights of women who have been
trafficked.
3.47 KEY RECOMMENDATIONS IN PROSECUTION
(1) By amendment to specific provisions of statutes wherever a child or minor is mentioned, the
definition of a child must comply with the definition under the UNCRC. Every person below the

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age of eighteen years must be considered to be a child. The Women and Children Repression
Prevention Act, 2000, must be amended accordingly.
(2) Trafficking must be seen as an organized crime in criminal procedure and substantive
criminal law. Existing principles of criminal law, such as common intention, conspiracy, etc.,
must be used in cases of trafficking.
(3) Cooperation mechanisms must be set up with mutual contacts at different levels to cut
through the red tape and make rapid action possible. This must be also done at the regional level
through SAARC or some other mechanism.
(4) Prosecutions should be increased.
(5) Corruption among police and border officials must be investigated in order to ensure that
cases of trafficking don't figure as illegal migration.
(6) Cases of trafficking should be taken up by designated courts dealing with violence against
women, and judges in such courts should be both trained in the law and sensitized towards issues
of gender.
(7) There is a need for overall systematic and focused trainings of all the wings of the criminal
justice system; namely, the police, the public prosecutors and the judicial officers. There must be
more stringent punishments for violations of labor standards.
3.48 KEY RECOMMENDATION IN PROTECTION
(1) There must be a clear line drawn between the trafficker and the victim. Victims must not be
further penalized, and a distinction must be made between trafficking on the one hand, and
prostitution or unsafe migration on the other.
(2) States must accept back their nationals who have been trafficked, even if laws relating to
border controls may have been breached by such persons.
(3) Rescue should go along with effective rehabilitation and must be done in a gender sensitive
way. The survivors of trafficking should have the right to exercise independent agency, rather
than being compelled to do whatever the State thinks is best for them.
(4) Civil remedies like torts, claims and compensation must be created and enforced against
traffickers or employers.
(5) States must commit finances for more and better schemes to rehabilitate victims.
(6) Witness protection must be explored to create an atmosphere free from fear within which a
victim can testify.

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(7) Focus should also be on men who are trafficked for labor.
3.49 KEY RECOMMENDATION IN PREVENTION
(1) Anti-trafficking trainings must continue with renewed vigour for different implementing
agencies. Trainings must be done continuously and at three levels:
(a) Basic/ Qualification Training
(b) Trainings to in-service personnel
(c) Trainings to those deputed to anti-trafficking squads/ police/ border controls.
(2) Employment and recruitment agencies must be closely monitored.
(3) There must be greater awareness at all stages of source, demand and transit, and
whistleblowers must be protected.
(4) Awareness building and community initiatives should be strengthened to prevent trafficking
and to ensure that unsafe migration will not take place.

CHAPTER-4

HUMAN TRAFFICKING IN INDIA AND LAWS REGARDING TO THAT

INTRODUCTION
Human trafficking which is for the purposes of sexual exploitation is becoming an
increasingly prevalent issue around the world. Trafficking is a huge industry which has been
identified as the fastest growing criminal industry in the world. Statistics state that at least thirty
million people are victims of slavery and human trafficking today. Every year thousands of men,
woman, and children fall into the hands of traffickers. This can even happen even in their own
country, considering every country in the world is affected by human trafficking.
Human trafficking can include several different components which can include
sex trafficking, labor trafficking, and organ trafficking. Sex trafficking is human trafficking into
prostitution. Labor trafficking is when someone is trafficked into work that is non-sexual.
Examples can include a man trafficked into farm work, or a woman trafficked into a servant.
Lastly, organ trafficking is when people are trafficked so their organs can be sold to be used into

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transplants. People can be forced into this trafficking by many means such as physical force
being used upon them, or false promises made by traffickers. Examples of promises may include
false job opportunities, or marriages in foreign countries. To prove that human trafficking is still
happening around the world,
It's hard to imagine that a world which talks about love, peace and brotherhood
amongst fellow human beings has a dark secret staring and mocking at its true reality. India is
listed in the Tier II115 list of the UN which includes countries which have failed to combat human
trafficking. The concept of trafficking denotes a trade in something that should not be traded in.
4.1 Human trafficking as defined by the UN
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 receiving of payments or benefits to
achieve the consent of a person having control over another person, 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 or service, slavery or practices similar
to slavery, servitude or the removal of organs.116
It is a really sad situation which India is facing. In almost every city there are
certain parts filled with brothels. Human trafficking includes sexual exploitation, labour
trafficking, etc. Nowadays even cross-border human trafficking is prevalent. India has a huge
population and because of that and our dwindling economy many people live below the poverty
line.117 The smugglers and traffickers promise them a better life- a ray of hope, jobs as domestic
servants, in the film world or in factories. They can offer them money, pleasure trip invitations or
false promises of marriage.
The main targets are the people who lack job opportunities, who have been victim
to regional imbalances or social discrimination, mentally disturbed, or the people who have
growing deprivation and are from the marginalized communities or people caught in debt

115
"India". Trafficking in Persons Report 2008. U.S. Department of State (June 4, 2008).
116
"Launching of Web Portal on Anti Human Trafficking" (Press release). PIB. 20 February 2014. Retrieved21
February 2014
117
"TIP Protocol Ratified status". UN.

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bondages or because their parents think that their children are burden and sell them off in
simple words- the poor, helpless people are the ones who are exploited the most.118
It has now become an organized institution and we as youth have to do everything
to remove this social vice from our country because the deliberate institutionalized trafficking of
human life is the greatest degradation to the dignity of human personality. Human trafficking
happens because of a simple concept which the traffickers believe in- that the human body is a
expendable, reusable commodity. Several things happen during a human being sale from
selecting, tricking, intimidation and deception of the victim to the transportation of them to the
location. Then comes the possible change to the central place where the actual trafficking
takes place in large numbers, there are many elements involved.
The recruiters are the first in the chain often called as the dalals they may be
parents, neighbours, relatives or lovers or people who have been trafficked before. The dalals
move to the potential sites for victims which mostly are the poverty-stricken areas where there
has been no proper rehabilitation and then they haunt the bus stops, railway stations, streets, etc.
The period they choose for trafficking depends on if that place has suffered a drought or social or
political disasters recently, so that it would be easier to lure in the already suffering victims. The
dalals use drugs, abduction, kidnapping, persuasion or deception to bag the targets.
The dalals usually happen to know many languages, including the local one, so
that they become closer to the victim. Because in India corruption is so deep rooted, the network
of such people sometimes includes the police, the visa/passport officials, taxi/auto rickshaw
drivers, etc. They hand the victims to the brothel owners, escort services, or managers of a sex
establishment. The reasons for human trafficking are many, despite 60 years of independence,
the benefits of economic development have not trickled down to the marginalized sections of the
society and millions of people still live below the poverty line. The poverty and hunger makes
children and women belonging to the poor sections of the society highly vulnerable to human
trafficking. Social and religious practices too have been a big cause. There is an inexplicable
apathy in the approach of law enforcement agencies when it comes to dealing with human
trafficking. Purposes include marriage, domestic labour, bonded labour, agricultural labour,
industrial labour, entertainment, begging, forced prostitution, adoption, drug smuggling and

118
Alyson Warhurst; Cressie Strachan, Zahed Yousuf, Siobhan Tuohy-Smith (August 2011). "Trafficking A
global phenomenon with an exploration of India through maps" (PDF). Maple croft. pp. 3945.( visited on website
in March 2017)

97
peddling and organ transplants .As India sees towards the world, it leaves behind the scars on its
ground the poor who are exploited.119
The Indian government has laid down laws in the Constitution like the
Suppression of Immoral Traffic in Women and Girls Act, 1956, The Immoral Traffic
(Prevention) Act, and many others. In September 2006, the Indian government responded to the
trafficking issue by creating a central anti trafficking law enforcement nodal cell. The nodal
cell is a federal two-person department responsible for collecting and performing analysis of data
related to trafficking, identifying the causes of the problem, monitoring action taken by state
governments, and holding meetings with state-level law enforcement. In 2007, three state
governments established anti-trafficking police units, the first of this kind in the India.120
The emerging scenarios are certainly positive but displaying full-page
advertisements against child labour, women slaves, etc in national newspapers at periodic
intervals is not enough. We have to wake up before it's too late. We can take up community
surveillances which will help check ongoing trafficking activities. Establishing women's groups
which will help take care of the women in the underprivileged societies since women and girls
are the most affected victims. We as the youth can take up initiatives to spread awareness
programs in villages, local schools, among kids of the poor society and children suffering from
parents and poor conditions where help can be provided.121

4.2 HUMAN TRAFFICKING OUTSIDE INDIA

Although illegal under Indian law, remains a significant problem. People are
frequently illegally trafficked through India for the purposes of commercial sexual exploitation
and forced/bonded labour. Although no reliable study of forced and bonded labour has been
completed, NGOs estimate this problem affects 20 to 65 million Indians Women and girls are
trafficked within the country for the purposes of commercial sexual exploitation and forced
marriage especially in those areas where the sex ratio is highly skewed in favour of men. A
significant portion of children are subjected to forced labour as factory workers, domestic

119
Biswajit Ghosh, ed., Trafficking in Women & Children, Child Marriage and Dowry: A Study for Action
Planning West Bengal (Kolkata: UNICEF and Govt. of West Bengal, 2007).
120
Combating Trafficking of Women and Children in South Asia: India Report (New Delhi: Asian Development
Bank, 2002),
121
Institute of Social Sciences, Trafficking in Women and Children in India(New Delhi: Orient Longman,2005),
report available on website

98
servants, beggars, and agriculture workers, and have been used as armed combatants by some
terrorist and insurgent groups.122
India is also a destination for women and girls from Nepal and Bangladesh
trafficked for the purpose of commercial sexual exploitation. Nepali children are also trafficked
to India for forced labour in shows Indian women are trafficked to the Middle-East for
commercial sexual exploitation. Indian migrants who migrate willingly every year to the Middle
East and Europe for work as domestic servants and low-skilled labourers may also end up part of
the human-trafficking industry. In such cases, workers may have been 'recruited' by way of
fraudulent recruitment practices that lead them directly into situations of forced labour, including
debt bondage; in other cases, high debts incurred to pay recruitment fees leave them vulnerable
to exploitation by unscrupulous employers in the destination countries, where some are subjected
to conditions of involuntary servitude, including non-payment of wages, restrictions on
movement, unlawful withholding of passports, and physical or sexual abuse.123
Human trafficking in India results in women suffering from both mental and
physical issues. Mental issues include disorders such as PTSD, depression and anxiety. The lack
of control women have in trafficking increases the risk of a victim's likeness to suffer from
mental disorders. Women who are forced into trafficking are at a higher risk for HIV, TB, and
other STD's. Condoms are rarely used and therefore there is a higher risk for victims to suffer
from an STD. Filmmaker Manish Harishankar has taken the subject of Child trafficking in India
in his film Chaarfhutiya Chhokare intensively and shown this problem, nexus, modus operandi
and repercussions.124

4.3 SCENARIO OF HUMAN TRAFFICKING IN INDIA:

The Trafficking in persons Report 2011, observes that India is a destination of
women and girls from Nepal and Bangladesh for the purpose of commercial sexual exploitation.
According to the report, India does not fully comply with the minimum standards for the

122
Integration of the Human Rights of Women and the Gender Perspective: Violence Against Women (New
York: United Nations, 2000), 7.7. Christien L. van den Anker and Jeroen Doomernik, eds,(report available on
website)
123
Kara, Siddharth, 2009 "Sex Trafficking: Inside the Business of Modern Slavery," Columbia University (report
available on website)
124
Brown, T. Louise, 2000, Sex Slaves: The Trafficking of Women in Asia, Virago Press Ltd. (report available on
website)

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elimination of trafficking. However, the report also points out that India in making significant
efforts to control it. Despite the efforts there has not been sufficient progress in its low
enforcement to address human trafficking. Child-trafficking for so called 'sex -tourism' is
increasing in places like Goa, Kerala, Karwar and Himachal Pradesh as poor parents use their
poverty as an excuse. Agents enter the picture; they bribe the police to turn a blind eye. Andhra
Pradesh, West Bengal, Maharashtra, Tamilnadu, Karnataka, Bihar, Orissa and Delhi have been
identified as the most affected states. At the cross border level, the major victims trafficked into
India for the purpose of commercial sexual exploitation, belong to Nepal and Bangladesh.125
4.4 DEMOGRAPHICS OF TRAFFICKERS
Traffickers of young girls into prostitution in India are often women who have
been trafficked themselves As adults they use personal relationships and trust in their villages of
origin to recruit additional girls.
4.5 CAUSES AND MODES OF TRAFFICKING126
There are several contributing factors for trade in human beings particularly in
women and children. The factors of trafficking in women and children can be divided into two
categories: push and pull factors. The push factors include: poor socio-economic conditions of a
large number of families, poverty coupled with frequent, almost annual natural disasters like
floods leading to virtual destitution of some people, lack of education, skill and income
opportunities for women (and for their family members) in rural areas, absence of awareness
about the activities of traffickers, pressure to collect money for dowries which leads to sending
daughters to distant places for work, dysfunctional family life, domestic violence against
women, low status of girl children, etc. It appears from the case studies that extreme poverty and
other causes of deprivation not only push people to fall in the tripod the traffickers, they also
create for some an incentive for trafficking. Often the prostitutes, who have no option to come
out of the exploitative environment, gradually develop intimate connections with the traffickers
and follow in their footsteps.
The pull factors are: lucrative employment propositions in big cities,
easy money, promise of better pay and a comfortable life by the trafficking touts and agents,

125
Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children,
Supplementing the United Nations Convention against Transnational Organized Crimes (New York:
United Nations, 2000), 3.6. United Nations, (report available on website)
126
http://researchdirection.org/UploadArticle/153.pdf (report available on website)

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demand of young girls for marriage in other regions, demand for low-paid and underage sweat
shop labour, growing demand of young kids for adoption, rise in demand for women in the
rapidly expanding sex industry, demand for young girls in places of military concentration like
Kashmir in India in recent times, demand for young girls for sexual exploitation as a result of the
misconception that physical intimacy with young girls reduces men's chances of contacting HIV
/ AIDS, or of the myth that sex with a virgin can cure HIV / AIDS and impotence. The rampant
practice of female feticide in the northern states of Haryana and Punjab has also fuelled internal
trafficking. Since there is a shortage of women in these states having a low female to male ratio,
they have become fertile ground for the operation of traffickers. Traffickers procure girls from
faraway states like
Assam and Orissa; trick their families into believing they are to be
married, only to later push them into prostitution. The causes of human trafficking are multi-fold
also because of the fact that we so far have made inadequate progress in addressing the issue.
Thus, weak enforcement machinery and inordinate delay in justice delivery helps the traffickers
to recruit or re-traffic women and children from the districts and send them to distant
destinations with relative ease. Rare conviction of the real traffickers encourages the operators of
the trade to continue the lucrative trade and earn huge margins without any investment.
Moreover, unwillingness of the victims to seek legal redress due to absence of support from the
police and the community members is also contributing to the spread of this crime. Trends im-
migration also influence trafficking and of late mobility across borders has increased to a great
extent due to the onset of the process of integration of economies around the world. In recent
years, the demand for cheap, flexible, uncritical labour has risen everywhere in orders to survive
in the age of competition and irregular migrants fit those demands the most. At the same time
traditional economic activities including agriculture, caste occupations, age-old handicrafts and
cottage industries are affected by the introduction of new technology, cheap imports, loss of
established jobs, demands for new types of consumer goods and consequent change in our
cultural practices. All these factors have contributed to migration and mobility of large numbers
of people from one place to another in search of jobs/facilities in recent times. Traffickers have
taken this opportunity and lured poor people.
One major problem faced by the poor families in India is the
members' limited ability to communicate outside their place of residence. Many of them are

101
illiteratecannot read or write. So they depend on others for sending letters or making a phone
call to their relatives. Often the guardians of law do not support the victims. It has often been
alleged that police harass the victims more than those who have committed the crime. All these
limitations not only make the socially and economically deprived sections of society vulnerable
to trafficking, but also explain why re-trafficking is so rampant in our society. Apart from the
increased demand of cheap labour in the production sector, globalization has played a major part
for the growth of tourism business and entertainment industries the world over. As a result, the
sex-related trades like sex tourism have registered rapid growth. At the same time, rising male
migration to urban areas as well as stressful working conditions of the Business Process
Outsourcing (BPO) sector workers have also contributed to a growing demand for commercial
sex in the cities. Our experience also reveals that trafficking is closely associated with child
marriage. Child marriage is one of the easiest modes applied by the traffickers to send young
girls from one place to another. In a traditional village community, there is a stigma attached to
single women. Inability to arrange the marriage of a daughter is a cause of embarrassment and
matter of shame for the parents. In this situation, when the traffickers approach the poor families
with marriage proposals (sometimes with cash rewards between Rs.10005000 on an average)
minus dowry, the parents find it hard to refuse the offer. After marriage, the girls sold and resold,
until she reaches the ultimate destination. The method of marriage to traffic a girl has one great
advantage; it protects the husband and the recruiter from the immediate accusations of
trafficking.
The dalals also shame and silence the parents efficiently by offering
a share in the benefit of their daughter's sale.42Apart from child marriage, other modes of
trafficking are fake marriage, false recruitment, kidnapping and abduction of children,
transportation of children with the consent of guardians, adoption of children, luring poor
families with jobs and better living condition in cities. Strategies for prevention Human
trafficking is a socio-legal problem and it is a symptom of a much deeper malice in our society.
Hence there cannot be any instant remedy for such a problem. The difficulties in detecting and
measuring trafficking cases make the task of prevention much more challenging. Nonetheless,
several measures can be taken in this direction and successful implementations of the steps will
surely bring some positive results.

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 Notwithstanding international cooperation and efforts, national
governments should pursue the following short-term and long-term measures to combat
trafficking:1. There is an urgent need to develop comprehensive programmes and policies
concerning manifest and latent aspects of trafficking in the context of situations and realities in
each country or region, to do away with the root causes of the vulnerabilities of women and
children in particular. A region-specific vulnerability mapping of the source, demand and transit
areas of trafficking will be very useful in this direction. It would however be erroneous to argue
that unless societies ensure certain types of 'structural transformations', human trafficking cannot
be prevented.
Apart from child marriage, other modes of trafficking are fake
marriage, false recruitment, kidnapping and abduction of children, transportation of children with
the consent of guardians, adoption of children, using poor families with jobs and better living
condition in cities.
4.6 LEGAL INTERVENTION IN HUMAN TRAFFICKING IN INDIA
As far as the legal framework and perspective on the issue of Human-trafficking
is concerned, several International and National Conventions, laws and protocols have been
adopted by the international and state agencies and departments. The international interventions
include: International agreement for suppression of white slave traffic (1904 and 1910),
International convention for the suppression of the traffic of the women and children (1921),
Slavery Convention (1926), ILO Forced Labour Convention (1930), International Convention for
suppression of traffic in women of full age, Universal Declaration of Human Rights (1948),
Convention for the suppression of the traffic in persons and of exploitation of the Prostitution of
others (1949), UN convention against Torture and other Cruel, Inhuman or Degrading Treatment
or Punishment (1984), Tourism Bill of Rights and the Tourist Code (1985), Convention on
Protection of Rights of Migrant Workers (1990), Optional Protocol to the Convention on the
elimination of all forms of discrimination against Women (1999), UN protocol to Prevent,
Suppress, and Punish Trafficking in Persons, especially Women and Children, 2000 etc.
However, the legal framework within the ambit of Indian territory has a strong
foundation as the issue has also been taken under the fundamental rights, in the constitution of
India. Article 23 (1) in the constitution of India prohibits trafficking in human beings and forced
labour. The Suppression of Immoral Traffic in Women and Girls Act, 1956 was enacted with an

103
objective of abolishing the immoral trafficking in women and girls. This act was later ammended
and renamed as The Immoral Traffic (Prevention) Act, 1986 (ITPA). ITPA is a special
legislation that deals exclusively with trafficking.
But, irrespective of the legal sanctions and constant watch, it is the fact of the
matter that the phenomenon of human-trafficking has not reduced yet. In fact, it is still
expanding and flourishing its existence among the vulnerable groups and has huge impact on
their basic fundamental rights of having a dignified life with full liberty as guaranteed by the
constitution.
4.7 PROVISIONS ON HUMAN TRAFFICKING IN THE CONSTITUTION
OF INDIA
India has addressed trafficking both directly and indirectly in its Constitution.
There are three Articles spread over Fundamental Rights in Part III and Directive Principles of
State Policy in Part IV which address trafficking related issues. The chart below summarizes the
provisions.
Article 23 Provides Right against Exploitation
Prohibition of traffic in human beings and forced labour:-
(1) Traffic in human beings and beggar and other similar forms of force labour are prohibited
and any contravention of this provision shall be an offence punishable in accordance with law.
(2) Nothing in this article shall prevent the state from imposing compulsory service for public
purpose. And in imposing such service the state shall not make any discrimination on grounds
only of religion, race, caste or class or any of them.
Article 39 Provides Certain principles of policy to be followed by the State
(e) that the health and strength of workers, men and women, and the tender age of children are
not abused and that citizens are not forced by economic necessity to enter avocations unsuited to
their age or strength;
(f) that children are given opportunities and facilities to develop in a healthy manner and in
conditions of freedom and dignity and that childhood and youth are protected against
exploitation and against moral and material abandonment.
India has a written Constitution, and though the above provisions make India's
mandate on trafficking clear, penalizing and tackling trafficking is dealt with by legislation. The

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Constitution specifically mentions trafficking in human beings as well as forced labor and also
indicates the special protection to be provided to vulnerable groups in society.
The Constitution of India discusses provisions on trafficking at two levels - one,
at the level of Fundamental Rights which are basic rights available to all, irrespective of caste,
creed, sex, place of birth, etc., and two, at the level of Directive Principles of State Policy.
Fundamental Rights are justiciable and can be directly enforced in a court of law, whereas
Directive Principles of State Policy are non-justiciable and cannot be directly enforced in a Court
of Law. However, Directive Principles play a major role in shaping the policy of the State and
may sometimes be the basis that legislation is built on. As a Fundamental Right in Article 23,
trafficking in human beings is prohibited as are all forms of forced labor. According to Directive
Principles of State Policy in Articles 39(e) and (f), the health and strength of workers should not
be abused. It prohibits exploitation of persons to perform work which is unsuitable for them. It
also specifically protects children and youth against exploitation of any kind. While the
provisions in the Directive Principles of State Policy do not mention trafficking, it mentions
exploitation which is a key element in trafficking.
4.8 IMMORAL TRAFFIC PREVENTION ACT, 1956
India's Immoral Traffic Prevention Act, 1956 is the only legislation specifically
addressing trafficking. However, it does mix up issues of trafficking and prostitution and is
currently pending amendment. It penalizes trafficking of women and children for commercial
sexual exploitation. Keeping a brothel is a punishable offence, as is living on the earnings of the
prostitution of others. The latter would inadvertently also cover family members or dependents
of the woman, which was not the intention of the legislation. There have been cases at times
where the trafficked woman has herself been charged under this provision .
Some of the major elements of trafficking are covered by the enactment. These
include procuring, inducing or taking a person for prostitution, detaining a person in premises
where prostitution is carried on and soliciting. Soliciting has also been used against women
themselves and is sought to be addressed by the proposed amendment which seeks to drop the
provision. If a person is found with a child in a brothel, there is a presumption that the child has
been detained in that place for sexual exploitation. It is a presumption which can be rebutted by
the defense on production of appropriate evidence.

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 On rescue and rehabilitation, the Act also provides for rescue on the
directions of a Magistrate. In order to ensure that the women rescued are not harassed, it requires
that two women police officers be present during the search procedures and also that the
interrogation be done by a woman police officer. There is a provision for placing the woman or
child in intermediate custody in a safe place and to refrain from placing her with those who
might have a harmful influence on her. If trafficking has been by the members of the family, or
there is suspicion that they may be involved, the trafficked persons may not be released to their
families.
As mentioned earlier, the Act is under amendment, and it is hoped that the
concerns often raised in its implementation will be adequately addressed.

4.9 Immoral Traffic Prevention Act, 1956

4.9.1 Section 3 Provides Punishment for keeping a brothel or allowing
premises to be used as a brothel.
(1) 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 two years and which may extend to three years and also with fine which may extend to ten
thousand rupees and in the event of a second or subsequent conviction, with rigorous
imprisonment for a term which shall not be less than three years and which may extend to seven
years and shall also be liable to fine which may extend to two lakh rupees.
(2) A any person who,
(a) being the tenant, lessee, occupier or person in charge of any premises, uses, or knowingly
allows any other person to use, such premises or any part thereof as a brothel, or
(b) being the owner, lessor or landlord of any premises or the agent of such owner, lessor or
landlord, lets the same or any part thereof with the knowledge that the same or any part thereof is
intended to be used as a brothel, or is wilfully a party to the use of such premises or any part
thereof as a brothel, shall be punishable on first conviction with imprisonment for a term which
may extend to two years and with fine which fine which may extend to two thousand rupees and
in the event of a second or subsequent conviction, with rigorous imprisonment for a term which
may extend to five years and also with fine.

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(2-A) For the purposes of sub-section (2), it shall be presumed, until the contrary is proved, that
any person referred to in clause (a) or clause (b) of that sub-section, is knowingly allowing the
premises or any part thereof to be used as a brothel or, as the case may be, has knowledge that
the premises or any part thereof are being used as a brothel, if,
(a) a report is published in a newspaper having circulation in the area in which such person
resides to the effect that the premises or any part thereof have been found to be used for
prostitution as a result of a search made under this Act; or
(b) a copy of the list of all things found during the search referred to in clause (a) is given to such
person.
(3) Notwithstanding anything contained in any other law for the time being in force, on
conviction of any person referred to in clause (a) or clause (d) of sub-section (2) of any offence
under that subsection in respect of any premises or any part thereof, any lease or agreement
under which such premises have been leased out or held or occupied at the time of the
commission of the offence, shall become void and inoperative with effect from the date of the
said conviction.
4.9.2 Section 4 Provides Punishment for living on the earnings of prostitution--
(1) 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, shall be punishable with
imprisonment for a term of not less than seven years and not more than ten years.
(2) Where any person over the age of eighteen years is proved,
(a) to be living with ,or to be habitually in the company of, a prostitute; or
(b) to have exercised control, direction or influence over the movements of a prostitute in such a
manner as to show that such person is aiding abetting or compelling her prostitution; or
(c)to be acting as a tout or pimp on behalf of a prostitute, it shall be presumed, until the contrary
is proved, that such person is knowingly living on the earnings of prostitution of another person
within the meaning of sub-section (1).
4.9.3 Section 5 Provides Procuring, inducing or taking person for the sake of
prostitution--
(1) Any person who---

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(a) procures or attempts to procure a person whether with or without his/her consent, for the
purpose of prostitution; or
(b) induces a person to go from any place, with the intent that he/she may for the purpose of
prostitution become the inmate of, or frequent, a brothel; or
(c) takes or attempts to take a person or causes a person to be taken, from one place to another
with a view to his/her carrying on, or being brought up to carry on prostitution ; or
(d) causes or induces a person to carry on prostitution; shall be punishable on conviction with
rigorous imprisonment for a term of not less than three years and not more than seven years and
also with fine which may extend to two thousand rupees, and if any offence under this sub-
section is committed against the will of any person, the punishment of imprisonment for a term
of seven years shall extend to imprisonment for a term of fourteen years: Provided that if the
person in respect of whom an offence committed under this subsection, is a child, the
punishment provided under this sub-section shall extend to rigorous imprisonment for a term of
not less than seven years but may extend to life.
(3) An offence under this section shall be triable,
(a) in the place from which a person is procured, induced to go, taken or caused to be taken or
from which an attempt to procure or taken such persons made; or
(b) in the place to which she may have gone as a result of the inducement or to which he/she is
taken or caused to be taken or an attempt to take him/her is made.
4.9.4 Section 6 Provides Detaining a person in premises where prostitution is
carried on
(1) Any person who detains any other person, whether with or without his consent,
(a) in any brothel, or
(b) in or upon any premises with intent that such person may have sexual intercourse with a
person who is not the spouse of such person, shall be punishable on conviction, with
imprisonment of either description for a term which shall not be less than seven years but which
may be for life or for a term which may extend to ten years and shall also be liable to fine which
may extend to one lakh rupees: Provided that the court may for adequate and special reasons to
be mentioned in the judgment, impose a sentence of imprisonment for a term which may be less
than seven years.

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(2) Where any person is found with a child in a brothel, it shall be presumed, unless the contrary
is proved, that he has committed an offence under sub-section (1).
4.9.5 Section 7 Provides Prostitution in or in the vicinity of public place ---
(1) Any person who carries on prostitution and the person with whom such prostitution is carried
on, in any premises:
(a) which are within the area or areas, notified under sub-section (3), or
(b) which are within a distance of two hundred meters of any place of public religious worship,
educational institution, hotel, hospital, nursing home or such other public place of any kind as
may be notified in this behalf by the Commissioner of Police or Magistrate in the manner
prescribed, shall be punishable with imprisonment for a term which may extend to three months.
(1-A) Where an offence committed under sub-section (1) is in respect of a child, the person
committing the offence shall be punishable with imprisonment of either description for a term
which not be less than seven years but which may be for life or for a term which may extend to
ten years and shall also be liable to fine: Provided that the Court may, for adequate and special
reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less
than seven years.
(2) Any person who:
(a) being the keeper of any public place knowingly permits prostitutes for purposes of their trade
to resort to or remain in such place; or
(b) being the tenant, lessee, occupier or person in charge of any premises referred to in
subsection 1 knowingly permits the same or any part thereof to be used for prostitution; or
(c) being the owner, lessor or landlord of any premises referred to in sub-section (1), or the agent
of such owner, lessor or landlord, lets the same or any part thereof with the knowledge that the
same or any part thereof may be used for prostitution, or is wilfully a party to such use. shall be
punishable on first conviction with imprisonment for a term which may extend to three months,
or with fine which may extend to two hundred rupees, or with both, and in the event of a second
or subsequent conviction with imprisonment for a term which may extend to six months and also
with fine, which may extend to two hundred rupees, and if the public place or premises happen
to be a hotel, the licence for carrying on the business of such hotel under any law for the time
being in force shall also be liable to be suspended for a period of not less than three months but

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which may extend to one year: Provided that if an offence committed under this sub-section is in
respect of a child in a hotel, such license shall also be liable to be cancelled .
[Explanation. For the purposes of this sub-section, hotel shall have the meaning as in clause
(6) of Section 2 of the Hotel-Receipts Tax Act, 1980 (54 of 1980).]
(3) The State Government may, having regard to the kinds of persons frequenting any area or
areas in the State, the nature and the density of population therein and other relevant
considerations, by notification in the official Gazette, direct that the prostitution shall not be
carried on in such area or areas as may be specified in the notification.
(4) Where the notification is issued under Sub-section (3) in respect of any area or areas, the
State Government shall define the limits of such area or areas in the notification with reasonable
certainty.
(5) No such notification shall be issued so as to have effect from a date earlier than the expiry of
a period of ninety days after the date on which it is issued.
4.9.6 Section 9 Provides Seduction of a person in custody
Any person who having the custody, charge or care of or in a position of authority over any
person causes or aids or abets the seduction for prostitution of that shall be punishable on
conviction with imprisonment of either description for a term which shall not be less than seven
years but which may be for life or for a term which may extend to ten years and shall also be
liable to fine: Provided that the court may, for adequate and special reasons to be mentioned in
the judgment, impose a sentence of imprisonment for a term of less than seven years.
4.9.7 Section 15 Provides Search without warrant
(1) Notwithstanding anything contained in any other law for the time being in force, whenever
the special police officer or the trafficking police officer as the case may be, has reasonable
grounds for believing that an offence punishable under this Act has been or is being committed
in respect of a person living in any premises, and that search of the premises with warrant cannot
be made without undue delay, such officer may, after recording the grounds of his belief, enter
and search such premises without a warrant.
(2) Before making a search under sub-section (1), the special police officer or the trafficking
police officer, as the case may be shall call upon two or more respectable inhabitants (at least one
of whom shall be a woman) of the locality in which the place to be searched is situate, to attend
and witness the search and may issue an order in writing to them or any of them so to do:

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Provided that the requirement as to the respectable inhabitants being from the locality in which
the place to be searched is situate shall not apply to a woman required to attend and witness the
search.
(3) Any person who, without reasonable cause, refuses or neglects, to attend and witness a search
under this section, when called upon to do so by an order in writing delivered or tendered to him,
shall be deemed to have committed an offence under Section 187 of the Indian Penal Code (45 of
1860).
(4) The special police officer or the trafficking police officer, as the case may be, entering any
premises under sub-section (1) shall be entitled to remove there from all the persons found
therein.
(5) The special police officer or the trafficking police officer, as the case may be, after removing
person under sub-section (4) shall forthwith produce her before the appropriate Magistrate.
(5-A) Any person who is produced before a Magistrate under sub-section (5), shall be examined
by a registered medical practitioner for the purposes of determination of the age of such person,
or for the detection of any injuries as a result of sexual abuse or for the presence of any sexually
transmitted diseases.
(6) The special police officer or the trafficking police officer, as the case may be, and other
persons taking part in, or attending, and witnessing a search shall not be liable to any civil or
criminal proceeding against them in respect of anything lawfully done in connection with, or for
the purpose of, the search.
(6-A) The special police officer or the trafficking police officer, as the case may be, making a
search under this section shall be accompanied by at least two women police officers, and where
any woman or girl removed under sub-section (4) is required to be interrogated it shall be done
by woman police officer and if no woman police officer is available, the interrogation shall be
done only in the presence of a lady member of a recognised welfare institution or organization.
(7) The provisions of the Code of Criminal Procedure, 1973 (2 of 1974) shall, so far as may be,
apply to any search under this section as they apply to any search made under the authority of a
warrant issued under 94 of the said Code.
4.9.8 Section 16 Provides Rescue of person
(1) Where a Magistrate has reason to believe from information received from the police or from
any other person authorised by State Government in this behalf or otherwise, that any person is

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living, or is carrying, or is being made to carry on, prostitution in a brothel, he may direct a
police officer not below the rank of a sub-inspector to enter such brothel, and to remove there
from such person and produce her before him.
(2) The police officer, after removing the person shall forthwith produce her before the
Magistrate issuing the order.
4.9.9 Section 17 Provides Intermediate custody, of persons removed under
Section 15 or rescued under Section 16
(1) When the special police officer removing a person under sub-section (4) of Section 15 or a
police officer rescuing a person under sub-section (1) of Section 16, is for any reason unable to
produce her before the appropriate Magistrate as required by sub-section (5) of Section 15, or
before the Magistrate issuing the order under sub-section (2) of Section 16, he shall forthwith
produce her before the nearest Magistrate of any class, who shall pass such orders as he deems
proper for her safe custody until she is produced before the appropriate Magistrate, or, as the
case may be, the Magistrate issuing the order:
Provided that no person shall be,
(i) detained in custody under this sub-section for a period exceeding ten days from the date of the
order under this sub-section; or
(ii) Restored to or placed in the custody of a person who may exercise a harmful influence over
her .
(2) when the person is produced before the appropriate Magistrate under sub-section (5) of
Section 15 or the Magistrate under sub-section (2) of Section 16, he shall, after giving her an
opportunity of being heard, cause an inquiry to be made as to the correctness of the information
received under sub-section (1) of Section 16, the age, character and antecedents of the person
and the suitability of her parents, guardian or husband for taking charge of her and the nature of
the influence which the conditions in her home are likely to have on her if she is sent home, and,
for this purpose, he may direct a Probation Officer appointed under the Probation of Offenders
Act, 1958, to inquire into the above circumstances and into the personality of the person and the
prospects of her rehabilitation.
(3) The Magistrate may, while an inquiry is made into a case under sub-section (2), pass such
orders as he deems proper for the safe custody of the person: Provided that where a person
rescued under Section 16 is a child, it shall be open to the magistrate to place such child in any

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institution established or recognised under any Children Act for the time being in force in any
State for the safe custody of children: Provided further that no person shall be kept in custody for
this purpose for a period exceeding three weeks from the date of such an order, and no person
shall be kept in the custody of a person likely to have a harmful influence over her.
(4) Where the Magistrate is satisfied, after making an inquiry as required under sub-section(2),
(a) That the information received is correct; and
(b) That she is in need of care and protection,
he may, subject to the provisions of sub-section (5), make an order that such person be detained
for such period, being not less than one year and not more than three, as may be specified in the
order, in a protective home, or in such other custody, as he shall, for reasons to be recorded in
writing, consider suitable: Provided that such custody shall not be that of a person or body of
persons of a religious persuasion different from that of the person, and that those entrusted with
the custody of the person, including the persons in charge of a protective home; may be required
to enter into a bond which may, where necessary and feasible contained undertaking based on
directions relating to the proper care, guardianship, education, training and medical and
psychiatric treatment of the person as well as supervision by a person appointed by the Court,
which will be in force for a period not exceeding three years.
(5) In discharging his functions under sub-section (2), a Magistrate may summon a panel of five
respectable persons, three of whom shall, wherever practicable, be women, to assist him; and
may, for this purpose, keep a list of experienced social welfare workers, particularly women
social welfare workers, in the field of suppression of immoral traffic in persons.
(6) An appeal against an order made under sub-section (4) shall lie to the Court of Session whose
decision on such appeal shall be final.
4.10 MISCELLANEOUS LEGISLATIONS RELEVANT TO
TRAFFICKING
India also has other penal laws dealing with trafficking. Some of these provisions have existed
prior to its independence.
Broadly speaking these legislations deal with a number of themes such as
children/ juvenile justice and protection, child labor, bonded labor/ indentured labor/ pledging of
persons for labor and marginalized groups such as Scheduled Tribes and Scheduled Castes in
India. These legislations, especially in the form of the Indian Penal Code, 1860, also deal with

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criminalizing of a number of offences not specifically dealt with in the ITPA. These include
penalizing acts such as procuring, buying and selling of human beings, importing or exporting
human beings, buying and selling minors, coercing or forcing marriage of minors,
kidnapping/abducting and using force for the purpose of trafficking, Slavery and slavery like
conditions, servitude, bondage and unacceptable forms of labor, and others.
4.11 INDIAN PENAL CODE, 1860
4.11.1 Section 366 Provides Kidnapping, abducting or inducing woman to
compel her marriage, etc
Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to
be likely that she will be compelled, to marry any person against her. will, or in order that she
may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced
or seduced to illicit intercourse, shall be punished with imprisonment of either description for a
term which may extend to ten years, and shall also be liable to fine; [and whoever, by means of
criminal intimidation as defined in this Code or of abuse of authority or any other method of
compulsion, induces any woman to go from any place with intent that she may be, or knowing
that it is likely that she will be, forced or seduced to illicit intercourse with another person shall
be punishable as aforesaid].
4.11.2 Section 366A Provides Procuration of minor girl
Whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go
from any place or to do any act with intent that such girl may be, or knowing that it is likely that
she will be, forced or seduced to illicit intercourse with another person shall be punishable with
imprisonment which may extend to ten years, and shall also be liable to fine.
4.11.3 Section 366B Provides Importation of girl from foreign country
Whoever imports into [India] from any country outside India [or from the State of Jammu and
Kashmir] any girl under the age of twenty-one years with intent that she may be, or knowing it to
be likely that she will be, forced or seduced to illicit intercourse with another person, [***] shall
be punishable with imprisonment which may extend to ten years and shall also be liable to fine.
4.11.4 Section 367 Provides Kidnapping or abducting in order to subject
person to grievous hurt, slavery, etc

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Whoever kidnaps or abducts any person in order that such person may be subjected, or may be so
disposed of as to be put in danger of being subject to grievous hurt, or slavery, or to the unnatural
lust of any person, or knowing it to be likely that such person will be so subjected or disposed of,
shall be punished with imprisonment of either description for a term which may extend to ten
years, and shall also be liable to fine.
4.11.5 Section 370 Provides Kidnapping or abducting in order to subject
person to grievous hurt, slavery, etc
Whoever kidnaps or abducts any person in order that such person may be subjected, or may be so
disposed of as to be put in danger of being subject to grievous hurt, or slavery, or to the unnatural
lust of any person, or knowing it to be likely that such person will be so subjected or disposed of,
shall be punished with imprisonment of either description for a term which may extend to ten
years, and shall also be liable to fine.
4.11.6 Section 371 Provides Habitual dealing in slaves
Whoever habitually imports, exports, removes, buys, sells, traffics or deals in slaves, shall be
punished with [imprisonment for life], or with imprisonment of either description for a term not
exceeding ten years, and shall also be liable to fine.
4.11.7 Section 372 Provides Selling minor for purposes of prostitution, etc
Whoever sells, lets to hire, or otherwise disposes of any [person under the age of eighteen years
with intent that such person shall at any age be employed or used for the purpose of prostitution
or illicit intercourse with any person or for any unlawful and immoral purpose, or knowing it to
be likely that such person will at any age be] employed or used for any such purpose, shall be
punished with imprisonment of either description for a term which may extend to ten years, and
shall be liable to fine.
Explanation I- When a female under the age of eighteen years is sold, let for hire, or otherwise
disposed of to a prostitute or to any person who keeps or manages a brothel, the person so
disposing of such female shall, until the contrary is proved, be presumed to have disposed of her
with the intent that she shall be used for the purpose of prostitution.
Explanation II-For the purposes of this section 'illicit intercourse" means sexual intercourse
between persons not united by marriage or by any union or tie which, though not amounting to a
marriage, is recognized by the personal law or custom of the community to which they belong or,

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where they belong to different communities, of both such communities, as constituting between
them a quasi-marital relation.
4.11.8 Section 373 Provides Buying minor for purposes of prostitution, etc
Whoever buys, hires or otherwise obtains possession of any [person under the age of eighteen
years with intent that such person shall at any age be employed or used for the purpose of
prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, of
knowing it to be likely that such person will at any age be] employed or used for any purpose,
shall be punished with imprisonment of either description for a term which may extend to ten
years, and shall also be liable to fine.
Explanation I - Any prostitute or any person keeping or managing a brothel, who buys, hires or
otherwise obtains possession of a female under the age of eighteen years shall, until the contrary
is proved, be presumed to have obtained possession of such female with the intent that she shall
be used for the purpose of prostitution.
Explanation II Illicit intercourse has the same meaning as in section 372.
4.11.9 Section 374 Provides Unlawful compulsory labor
Whoever unlawfully compels any person to labor against the will of that person, shall be
punished with imprisonment of either description for a term which may extend to one year, or
with fine, or with both. [Sexual offences]

4.12 Prohibition of Child Marriage Act, 2006

4.12.1 Section12 Provides Marriage of a minor child to be void in certain
circumstances.
Where a child, being a minor-
(a) is taken or enticed out of the keeping of the lawful guardian; or
(b) by force compelled, or by any deceitful means induced to go from any place; or
(c) is sold for the purpose of marriage; and made to go through a form of marriage or
if the minor is married after which the minor is sold or trafficked or used for immoral purposes,
such marriage shall be null and void.

4.13 Children (Pledging of Labour) Act, 1933

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4.13.1 Section 4 Provides Penalty for parent or guardian making agreement to
pledge the labour of a child.
Whoever, being the parent or guardian of a child, makes an agreement to pledge the labour of
that child, shall be punished with fine which may extend to fifty rupees.
4.13.2 Section 5 Provides Penalty for making with a parent or guardian an
agreement to pledge the labour of a child
Whoever makes with the parent or guardian of a child an agreement whereby such parent or
guardian pledges the labour of the child shall be punished with fine which may extend to two
hundred rupees.
4.13.3 Section 6 Provides Penalty for employing a child whose labour has been
pledged.
Whoever ,knowing or having reason to believe that an agreement has been made to pledge the
labour of a child, in furtherance of such agreement employs such child, or permits such child to
be employed in any premises or place under his control, shall be punished with fine which may
extend to two hundred rupees.
4.14 Bonded Labour System (Abolition) Act, 1976
4.14.1 Section 16- Punishment for enforcement of bonded labour.-
Whoever, after the commencement of this Act, compels any person to render any bonded labour
shall be punishable with imprisonment for a term which may extend to three years and also with
fine which may extend to two thousand rupees.
4.15 Child Labour (Prohibition and Regulation) Act, 1986
4.15.1 Section 3 - Prohibition of employment of children in certain
occupations and processes.
No child shall be employed or permitted to work in any of the occupations set forth in Part A of
the Schedule or in any workshop wherein any of the processes set forth in Part B of the Schedule
is carried on:
Provided that nothing in this section shall apply to any workshop wherein any process is carried
on by the occupier with the aid of his family or to any school established by, or receiving
assistance or recognition from, Government.

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 4.16 Juvenile Justice Act, 2000
Section 2 (vii) who is found vulnerable and is likely to be inducted into drug
abuse or trafficking,
4.16.1 Section 24 Provides Employment of juvenile or child for begging.
(1) Whoever employs or uses any juvenile or the child for the purpose or causes any juvenile to
beg shall be punishable with imprisonment for a term which may extend to three years and shall
also be liable to fine.
(2) Whoever, having the actual charge of, or control over, a juvenile or the child abets the
commission of the offence punishable under sub-section (1), shall be punishable with
imprisonment for a term which may extend to one year and shall also be liable to fine.
4.16.2 Section 26 Provides Exploitation of juvenile or child employee.
Whoever ostensibly procures a juvenile or the child for the purpose of any hazardous
employment keeps him in bondage and withholds his earnings or uses such earning for his own
purposes shall be punishable with imprisonment for a term which may extend to three years and
shall be liable to fine.
4.17 DOMESTIC LAW OF INDIA
Domestic law in India lacks a comprehensive definition of trafficking at the Central level. The
ITPA, does not define trafficking, but it defines 'prostitution' to mean sexual exploitation or
abuse of persons for commercial purposes, which has elements of trafficking. It has a number of
provisions which punish forms of trafficking without actually defining trafficking. The Act is in
the process of being amended, and these amendments also include a proposed definition of
trafficking as follows.
Whoever recruits, transports, transfers, harbours, or receives a person for the purpose of
prostitution by means of:
(a) Threat or use of force or coercion, abduction, fraud, deception.
(b) Abuse of power or a position of vulnerability.
(c) Giving or receiving of payments or benefits to achieve the consent of such person having control
over another person, commits the offence of trafficking in persons.
Explanation: Where any person recruits, transports, transfers, harbours or receives a person for
the purposes of prostitution, such person shall, until the contrary is proved, be presumed to have

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recruited, transported, transferred, harboured or received the person with the intent that the
person shall be used for the purpose of prostitution.
As of now, though there is no Central legislation defining trafficking comprehensively, one of
the States, i.e., Goa, has a legislation which, though limited to child trafficking, gives a detailed
definition of trafficking. The Goa Children's Act, 2003, defines 'child trafficking' to mean the
procurement, recruitment, transportation, transfer, harboring or receipt of persons, legally or
illegally, within or across borders, by means of 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
giving or receiving payments or benefits to achieve the consent of a person having control over
another person, for monetary gain or otherwise. While the definition complies with the standards
laid down in the Protocol, it applies only to children and, that too, only within the State of Goa.
4.18 CASE LAW ON TRAFFICKING: LANDMARK JUDICIAL
PRONOUNCEMENTS HAVING A BEARING ON HUMAN
TRAFFICKING
Other than looking at provisions in constitutions and legislations, case laws built up by courts are
also part of the domestic law. Case law provides an important insight into the direction that the
law is taking and the interpretation the courts may have on any given provision of the law.
Trafficking is highly dependent on the subordinate/ lower judiciary to determine convictions, and
the lower judiciary is bound by judicial pronouncements of the higher courts which lay down
policy, guidelines and interpretations.
Court decisions deal with issues ranging from treatment of victims to the
constitutional protection of victims as well as prosecution of traffickers. Also, domestic
trafficking has been the focus rather than cross border trafficking.
In most references to judicial decisions or to 'landmark cases' on trafficking,
reference is usually made to decisions of the Supreme Court of India, or to one of the High
Courts. However, the bulk of cases on trafficking are dealt with by lower courts. These cases are
not reported unlike those of the High Courts and the Supreme Court. However, studies have
shown that convictions have been abysmally low and that very often victims have been re-
victimized in the process.
There have been some principles laid down by the High Courts and the Supreme
Court which have had a positive impact on the approach of the judiciary to cases of trafficking.

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Broadly speaking, these decisions deal with three main concerns - victim's rights, giving
appropriate directions to government, and special protection to the child.
4.18.1 Victim's Rights: Many judicial decisions in India have been focused on the
protection of victims of trafficking. In Prajwala v Union of India,127 the implementation of a
victim protocol was demanded. There have been cases where compensation has been ordered to
be paid by a perpetrator of crimes to victims of the crime as in BodhisattwaGautam v Subhra
128
Chakraborty, where a person had promised marriage to a woman and even went through with
a wedding ceremony which turned out to be false. This has been applied to foreign nationals as
well. In cases of trafficking too, this principle has been used, as seen in PUCL v Union of
India,129 where compensation was ordered to be paid where children were trafficked/ bonded for
labour.
4.18.2 Directions to State functionaries to tackle the problem of trafficking:
Vishal Jeet v Union of India and Others130 was a landmark decision where the Supreme Court
took it upon itself to give directions for the protection and rehabilitation of those who had been
dedicated as devdasis by their families or communities for cultural reasons and were currently in
prostitution. While devadasis and jogins are from different states in India, this also could apply
to Nepali women who are also dedicated, albeit in Nepal, and find themselves in brothels in
India. In Gaurav Jain v Union of India131 the court affirmed that the State had a duty to rescue,
rehabilitate and enable women to lead a life of dignity.
The Court has also at times taken serious note of what it referred to as the
indifferent and callous attitude of the State Administration in identifying, releasing and
rehabilitating bonded laborers in the country. It observed that whenever it is shown that a laborer
is made to provide forced labor, the court would raise a presumption that he is required to do so
in consideration of an advance received by him and is, therefore, a bonded laborer. The burden
of rebutting this presumption is upon the employer. The Court made this observation in Neerja
Chaudhary v State of Madhya Pradesh132

127
WRIT PETITION(C) NO.56 OF 2004
128
1996 AIR 922, 1996 SCC (1) 490
129
(1997) 3 SCC 433
130
1990 AIR 1412, 1990 SCR (2) 861
131
1990 AIR 292, 1989 SCR Supl. (2) 173
132
AIR 1984 SC 1099, 1984 (2) Crimes 511 SC, 1984 LablC 851, 1984 (1) SCALE 874, (1984) 3 SCC 243

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 There have been two categories of children that courts have looked at - children
who have been trafficked themselves and children who are in need of care and protection (those
vulnerable to being trafficked). Prerana v State of Maharashtra133 clearly held that children who
have been trafficked themselves should also be considered as children in need of care and
protection, and not as children in conflict with the law. Gaurav Jain among other things also dealt
with children of sex workers who were vulnerable. The Court held that they should not be
allowed to live in their homes as their surroundings were undesirable. Yet another case was
Lakshmikant Pandey v Union of India134 which examined the vulnerability of children being
trafficked in adoption rackets due to the lack of an effective protection mechanism. The court
went on to create an appropriate mechanism to fill the gap, especially in the context of inter
country adoptions.

CHAPTER - 5
CONCLUSION
This paper tried to show that human trafficking is a global issue today that needs the attention of
everyone in order to eradicate it. In order to stop the human trafficking problem, governments
including nongovernmental organizations need to collaborate and work together to identify
victims and punish criminals. The Ghana Anti-Human Trafficking Act passed in 2005 is a step in
the right direction. Also, the United Nations protocol of 2000 strengthened the anti human
trafficking measures by instituting units under the police criminal division to rescue victims of
human trafficking. Other anti-human trafficking organizations can now be found practically in
every regional bloc with an oversight responsibility to detect and punish human traffickers.
Again while all these are laudable, not all countries in Africa and elsewhere have these policies
put in place. Even countries that boast of anti-human trafficking rules are sometimes
underfunded making it difficult to combat human traffickers. As we embark on the crusade to
combat human trafficking, the international community urges countries to realize and implement

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2003 BomCR Cri, (2003) 2 BOMLR 562, 2003 (2) MhLj 105
134
1984 AIR 469, 1984 SCR (2) 795

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the protocol that deal with human trafficking for labor exploitation, especially, in multiple
economic sectors, including and among others agriculture, construction, hospitality and domestic
service. According to the International Labor Organization (ILO), about 40% of trafficking takes
place in forced commercial sexual exploitation Human trafficking involves transporting victims
either internally or externally to usually unknown destinations. In this case victims are uprooted
and transported to a different state or within the same state. Consequently, as we continue to
enjoy the global economic system, human traffickers have been practically ignored culminating
in enormous chunk of wealth accrued through illegal business practices. The intensity of the
problem of human trafficking has become a global pandemic that is rooted in every community
organized by human traffickers who by overt and covert activities use several means possible
including among others coercion and wealth to sustain the continues enslavement of vulnerable
people across the globe. Again, this phenomena permeate every nation state and involves the
recruitment, transportation, and to a large extent the enslavement of the economically vulnerable.
Human-trafficking is one of the worst criminal activity that has spreaded its
infection over the planet. It is one of the wicked act that has made the lives of millions as worse
as the hell. This kind of modern slave trade has washed away the humanity among those who are
being involved. The moral values, ethos and sense of belongings as a member of same human
race has been crubed by the individual interest and pleasure. The victimization of poor and
vulnerable masses has excluded them from the human race and commodified them like animals
and vegetables in the market. Their right and access to justice has no signifacant meaning and
worth for them. The procedures, process, means, methods as well as the rate of involvement is
increasing in this crime each day due to lack of resources, highest demand in the market, very
few income options and impotent legal watch system. It is, thus, imperative to have a careful
watch and monitoring mechanism as well as strong interventions and committment through
which we can attempt to clean out this crime across the globe.
As a complex manifestation of the global economy, organized crime and human
rights violations, human trafficking causes extreme hardship to the suspected millions of people
worldwide who have become victims of this crime and has an impact on the financial markets,
the economies and the social structures of countries where trafficking is allowed to exist. As a
major component of organized crime with its enormous financial power, trafficking in persons

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has a complex and interlocking negative impact across human, social, political and economic
arenas.
The destabilizing and dangerous consequences range from readily recognized
violence, direct economic loss and major migration concerns to the less easily quantified, equally
serious, but more complex effects of risks and harms to environmental, social, health and safety,
and violations of human rights. Trafficking in persons directly challenges the development of
stable, more prosperous societies and legitimate economies, and works strongly against the
reconciliation of political interests with humanitarian and human rights obligations. The range of
trafficking-related crimes and their broad and interrelated impacts have created a cumulative
threat to global peace, security and stability and have shaped political, social and economic
responses at both national and global levels.

ROLE OF WORLD BANK

This paper tries to show the complex of norms of international law that could
guide future Banks activities in the field of contemporary forms of slavery, including
trafficking. We have asserted that some existing rules are part of customary international law,
such as the prohibition of slavery and forced labor, are today binding for all subjects of
international law. However, most of the rules mentioned are included in universal or regional
treaties, and every activity or analysis concerning a particular country should be sensitive to the
concrete set of rules binding the State at stake.
It has been argued that the Bank, according to its mandate, may intervene in
different aspects related to contemporary forms of slavery, including trafficking, excluding
issues still reserved to the domestic sphere of States, such as the investigation, prosecution and
punishment of perpetrators, issuance of residence titles or border controls.
This paper asserts that the contemporary forms of slavery are originated by
poverty related problems: poverty makes persons particularly vulnerable to them. Moreover,
those that are victims of contemporary forms of slavery appear to be condemned to poverty.
More research about the economic impact of contemporary forms of slavery on poverty and the
impact of poverty as an essential vulnerability factor that contributes to contemporary forms of
slavery are, however, necessary. The balance of economic and social concerns appears to be an
important deterrent of contemporary forms of slavery, and lack of access to decent work. As a

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Knowledge Bank, the Bank could work on the generation of data, indicators, research, and
evaluation of existing initiatives and programs; identify those vulnerable to exploitation,
particularly girls and children, as to focalize effective preventive measures; analyze the
relationship between poverty and the different forms of exploitation mentioned supra, child
labor, labor market discrimination, labor market regulation, conditions of employment of
particularly vulnerable groups such as women, youth, ethnic minorities, the disabled; on the role
of trade unions and collective bargaining in poverty reduction in low-income countries, and
consequently, whether they reduce vulnerability to exploitation, etc. This could permit to
develop future and effective interventions.
Mainstreaming the contemporary forms of slavery implies the adoption of several
steps, including these issues in the country analysis and strategies, to analyze groups which are
particularly vulnerable in any poverty analysis, with special attention to mobile populations, as
well as women and children; to develop projects that would directly and indirectly combat and
reduce the contemporary forms of slavery, to identify and work with partners, particularly those
who would benefit from these policies, as to develop project components; to address the
contemporary forms of slavery technical assistant and sector and thematic work), to raise
awareness on contemporary forms of slavery, and allowing initiative and participatory
approaches by victims and survivors.
Finally, the Bank could use its leadership in gathering efforts for international
cooperation for prevention and assistance to victims. The Bank counts with almost universal
membership and a paramount leading role in the fight against poverty: the civil society has been
claiming the need of further work in the prevention of trafficking. This leading role could
represent an extraordinary opportunity for the World Bank.

EFFECTS OF TRAFFICKING IN BUILDING OF ANY NATION

Human trafficking is a concern for the development professionals. To address
trafficking in persons, a need and rights-based approach is required. This issue is complex as it
encompasses socio-economic and political aspects of a social system. The major findings of this
study are:
There is a large gap to be bridged between the laws existing and the laws being
implemented. The traffickers are not being convicted according to the actual number of people

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being trafficked. Due to dearth of resources for the law enforcement officers, this gap exists. The
mandates available or provisioned are not enough to curb trafficking. India as a state lacks victim
protection laws, regulations and policies. The shelter homes and short stay homes existing do not
function well, so they should be monitored. The partial behaviour of the district administration
towards the local NGOs and the tribal people does not solve the problem rather it worsens it.
Police personnel and law enforcement officials lack the belief that child trafficking and
trafficking in person is a serious crime. They lack sensitization and awareness. The sense of duty
for the public should be instilled in the minds of every stakeholder. Dysfunctional rehabilitation
measures are a failure. Not much importance is given to the issue of human trafficking in this
industrial district, when it is being addressed at the state level. There is no rehabilitation scheme
for the males who get trafficked. That is a major setback.
In the year 2013, Integrated Anti-Human Trafficking Unit was established under
the Ministry of Women and Child Development. Its primary goal is to detect, prevent trafficking
as well as rescue and rehabilitate those who have been trafficked. Bringing the convict under the
books of law is one of the goals of the Integrated Anti-Human Trafficking unit and making it a
speedy procedure is also an integral part of.

Recognition of slavery and practices similar to slavery as the possible exploitative

purpose of trafficking in persons emerged through the development of international anti-slavery
instruments. Early white slave traffic conventions founded the contemporary trafficking in
persons framework under international law. While significant definitional limitations are evident
these anti-prostitution treaties were the initial recognition of the traffic of women and children
for the purpose of commercial sexual exploitation. The continuation of this focus on the
gendered victim forced into prostitution is evident within trafficking in persons discourses today.
Developments within international labour law, specifically, the prohibition of forced labour and
the exploitation of child labour and migrant labour, have also contributed to the contemporary
trafficking in persons framework, particularly by extending the scope of trafficking to encompass
the exploitation of labour outside of the sex industry. Similarly, international law in relation to
the rights of the child significantly extended the concept of trafficking in persons, to a focus on
child trafficking for numerous exploitative purposes. Interestingly, the incorporation of the

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human rights framework into trafficking in persons discourses has caused both tension and
recognition of parallel systems operating in international law.
However, it is not enough to focus merely on the criminalisation and prosecution
of traffickers and the protection and rehabilitation of trafficked persons. It is through an
understanding of trafficking in persons as a process that adequate international responses to this
phenomenon can be developed to effectively address the causes and consequences of trafficking.
Analysis of historical developments in international law reveals the parameters of contemporary
conceptualisations of trafficking in persons and unravels the associated complexities.
While it is clear that we have worked hard to put in place a normative framework
to fight human trafficking, there remains a vast gulf between the letter of the law and the
situation on the ground, citing a recent International Labour Organization (ILO) report, which
suggests that the illicit profits realized annually from trafficked labourers alone now amounted to
some $32 billion.
Eliminating the modern form of slavery meant scrupulously addressing the
conditions that fed it -- both on the demand and on the supply side. Trafficking had first been
denounced as incompatible with human dignity in the 1949 Convention for the Suppression of
the Trafficking in Persons and Exploitation or Prostitution of Others. In 2000, the adoption of
the landmark United Nations Convention against Transnational Organized Crime and its
Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and
Children, had laid down the first comprehensive definition of trafficking.
We have the tools. We must use them more effectively to stamp out human
trafficking forever, to put their commitments into practice by squarely addressing the three Ps
as defined in the Protocol: protection of the vulnerable; prosecution of criminals; and prevention
of trafficking. Those States that were not yet parties to the relevant treaties should adopt the
normative frameworks as soon as possible. To speed up implementation of the Convention and
its Protocol, it was important to set up a regular review mechanism to hold States and the United
Nations system to account.
International law defines human trafficking as nonconsensual exploitation,
subsuming all forms of exploitation that involve threats, coercion, fraud, or deception. In
practice, though, the boundaries between coercion and economic necessity or economic
coercion are vague. For this reason, this paper introduces the concept of consensual

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exploitation. When people have no choices, they may have no alternative but to subjugate
themselves to exploitation. Because the appropriate policy response for incidents of consensual
exploitation will differ from that for nonconsensual exploitation, the distinction in terminology is
necessary. In particular, fighting consensual exploitation might require passing judgment on
what constitutes unfairness in circumstances where employers possess disproportionate
bargaining power. The adequate legal remedies to fight consensual exploitation can be found in
social and labor law. In fighting nonconsensual exploitation, however, the primary focus must be
on removing the elements of coercion, deception, or fraud. The legal remedies for nonconsensual
exploitation and human trafficking can therefore be found in criminal justice law .
Exploitation of any kind is an obstacle to economic development because of its
adverse effects on efficiency and equity. The international development community recognizes
this through its work in the areas of labor markets, social protection, social development, and
rule of law reform. Most of these interventions have an indirect, preventive effect on fighting
exploitation by decreasing vulnerabilities, enhancing economic opportunities for the poor, and
strengthening the bargaining power of workers in monopsonistic labor markets. Rule of law
reforms and interventions in the area of access to justice, on the other hand, have a more direct
impact on nonconsensual exploitation by empowering the exploited to seek justice from rule of
law institutions.
The World Bank clearly focuses on interventions with in indirect effect on
exploitation, in particular consensual exploitation; yet, given the magnitude of nonconsensual
exploitation and its adverse effects on equity and efficiency, the World Bank might have to
consider increasing its contributions to the fight against nonconsensual exploitation. This could
be achieved through various avenues. The World Bank may need to broaden the scale and scope
of its projects and programs that directly tackle issues relating to nonconsensual exploitation.
This could mean to increase efforts to empower vulnerable groups, to improve access to justice
for the poor, and with regard to transnational human trafficking to regulate recruitment
agencies and to provide pre-departure support for migrants. Another important focus for the
World Bank should be on data generation, research, and the evaluation of existing initiatives and
programs to fight nonconsensual exploitation, thus positioning itself as a knowledge bank. These
could be done in isolation, but more effectively in partnerships with other organizations. Finally,
and perhaps most importantly, the World Bank should consider whether to position itself as a

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leader in the fight against nonconsensual exploitation through active and visible advocacy and by
leveraging the privileged access it enjoys with world leaders in both its client and donor
countries.
Trafficking itself could potentially be the basis of a claim for refugee status. In
2006 UNHCR issued Guidelines on international protection: The application of article 1A(2) of
the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees to victims of
trafficking and persons at risk of being trafficked (UNHCR Trafficking Guidelines). They
acknowledge that not all victims or potential victims of trafficking fall within the scope of the
refugee definition and that being a victim of trafficking does not, per se, represent a valid ground
for claiming refugee status. However, they also affirm that, in some cases trafficked persons may
qualify for international refugee protection if the acts inflicted by the perpetrators would amount
to persecution for one of the reasons contained in the definition of the 1951 Convention and the
State does not provide effective protection.

FINDINGS IN INDIAN LEGAL SYSTEM REGARDING HUMAN

TRAFFICKING
Trafficking in Women and Children was commissioned by the NHRC with the
aim of understanding the trends and patterns of trafficking, studying the demand situations and
the vulnerability factors, and looking into the response by the various concerned agencies. The
preceding chapters have presented the analysis of the data collected by interviewing 4,006
persons falling under seven categories, coupled with the qualitative data that was gathered from
more than 150 case studies on different issues, as well as the inputs and knowledge that came
from the feedback during the many focus group discussions and several training programmes
attended by judicial officers, police officers, other government officials, NGOs, social activists,
lawyers, academicians, media personnel, etc.
There are many important aspects that can be flagged as a contribution of this
research. Firstly, this study has explored new vistas which were hitherto unexplored. The study
has, for example, interviewed 160 traffickers and 582 clients. So far, no other study is available
in India, or known to be available elsewhere, which has made efforts to fathom the world of
exploitation by venturing into a detailed, structured interview of these exploiters. The second
important aspect is the validation of certain beliefs. The study has confirmed that among the

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trafficked persons, the majority are girl children. This and other similar findings provide a sound
database for initiating appropriate intervention programmes. A third important feature of this
study is that it has negated certain popular myths. A popular conception is that the clientele who
visit the brothels or abuse trafficked girls are men who live away from their families and,
therefore, look for options to satisfy their sexual urges. However, the study shows that among the
respondents, 45.5 per cent are married and, among them, 72.9 per cent are living with their
spouses. Therefore, this data provides appropriate indicators for various agencies, governmental
and non-governmental, to reorient their policies, programmes and projects accordingly.
The study has made an effort to demystify the world of trafficking and the
existing response scenario. It has identified and studied the issues of trafficking, segregating
them from that of commercial sexual exploitation. The common perception, that the rescued
survivors and those who are still in brothels are prostitutes who indulge in soliciting and make
profits in this trade, has been thrashed by uncovering the reality of the situation these hapless
women and children are victims of grave human rights violations, having been trafficked by
vested interests by lure, deceit, compulsion, threat, coercion and, thereafter, pushed into the
world of commercial sexual exploitation or other types of bondage. According to the study, the
exploitation of women and children takes place not only before trafficking, but also during
trafficking and after trafficking.
Trafficking of women and children is not a localised issue and so, it can be safely
presumed that the study represents the national status though it was carried out only in 12 states
of India. There may be a few instances of trafficking within a community, but trafficking is
largely a borderless crime, transgressing the boundaries of police stations, districts and states.
The study has brought out the serious dimensions of inter-district, inter-state and international
trafficking.
The data from the 561 survivors (rescued victims) shows that more than 50 per
cent of them are from the socially deprived sections of society. The majority of them come from
dysfunctional families. The fact that 56 per cent of the survivors have been rescued by the police
shows that even in the present situation, law enforcement agencies play an important role in the
rescue of such victims. It may be noted that 38 per cent of the survivors have been rescued by
NGOs, despite the fact that in most of the states, NGOs have not been officially notified by the

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Advisory Body (Section 13(3)(b) ITPA). These partnerships have been forged and facilitated by
the intervention of
The High Courts of Delhi and Mumbai. Among the survivors, 20.7 per cent are
children below 18 years and the majority of them were trafficked at a very young age. The high
level of exploitation and vulnerability of children is obvious. Among the survivors who were
interviewed, 17.5 per cent had been rescued once earlier, 1.8 per cent twice before, and 6.6 per
cent were rescued more than two times. This data shows the extent of retrafficking. Moreover,
57.5 per cent of them had been arrested by the police earlier. This means that the victims have
been criminalised. Having not been rehabilitated, they had no option but to return to brothels.
Moreover the data shows a high percentage of return to brothels of those who were rescued or
arrested earlier. This exposes the glaring deficiencies in the existing system of law
enforcement, justice delivery and rehabilitation programmes.
The data analysis from the 929 trafficked women and children, who still continue
to be victims of CSE, further confirms the level and extent of exploitation and abuse unleashed
on them by the exploiters. This data shows that 2.9 per cent of them are from Nepal and 1.1 per
cent from Bangladesh. It may be noted here that the response of the rescued survivors had
indicated that 1.8 per cent were from Bangladesh, 4.5 per cent from Nepal and 0.2 per cent from
Pakistan. These figures prove the existence of trans-border trafficking for commercial sexual
exploitation. This, clubbed with the observations from the intervention centres in the transit
routes, shows that the actual number of women and girls trafficked across the border would be
very high. Case study No.CS-UP-01 shows that out of the eight major trafficking routes across
the U.P. Nepal border, the Rights Awareness Programme initiated on one of the routes exposed
the fact that of the 3,535 persons migrated to India.
The study has brought to light that trafficking, though not reported from many
places, is happening almost everywhere. The situation is worse in areas which are
underdeveloped. It emerges from the study that trafficking of women and children from the
North-Eastern states of India and bordering countries, in both directions, is a serious issue which
has not drawn public attention. Pangsa and Dimapur in Nagaland and More in Manipur are the
major transit and demand centres. According to the information collected during research,
women and children from Assam and Bangladesh are trafficked to More and from there, they are
moved out to Myanmar and other countries in South East Asia through the Golden Triangle.

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Similarly, women and children from Assam (especially Jorhat), Nagaland (especially
Mokokchung, Tuensang, and Pangsa) and Bangladesh are trafficked through the Pangsa
International Treat Tower and then moved to the Golden Triangle. Dimapur is a transit centre for
people trafficked from Assam, especially upper Assam, Lumding, Guwahati, etc. They are
moved to More or the international border at Tuensang and from there to the Golden Triangle.
The long drawn extremist activities as well as the ethnic clashes and conflicts between several
groups in this region have made women and children in the entire region highly vulnerable. Lack
of infrastructural development and livelihood options have exacerbated the situation. Since
trafficking in this area cuts across different states and countries, it needs to be studied in detail
and dealt with appropriately by the agencies of the Government of India, along with the state
governments and appropriate NGOs working in this field.
More than 60 per cent of the victims of CSE were also victims of child marriage.
Figures show that a vast majority of the victims of CSE are those who have been subjected to
sexual assault as children 45.6 per cent had their first sexual experience while they were under
16 and 27.7 per cent when they were in the 16-17 age group. The extreme vulnerability of
children and a high demand for them for commercial sexual exploitation is established by the
fact that 22.9 per cent had been pushed into brothels even while they were less than 16 and 21.4
per cent while they were in the 16-17 age group. Among the victims of CSE, 10 per cent stated
that they are victims of retrafficking. This is another issue that needs to be taken serious note of.
The data from the victims and survivors indicates that almost 50 per cent of the
traffickers are females but it doesnt reveal the larger dimensions and networks of traffickers.
The fact that 68 per cent of the victims in brothels were lured with promise of jobs and 16.8 per
cent by promise of marriage, makes it clear that deception is by far the most frequent means used
by the traffickers to ensnare their victims. The data from the survivors also supports this point.
Based on the information from the victims, it emerges that a total of 1,092 traffickers were
involved in trafficking 437 respondents. This shows the networking and organised linkage
among traffickers.
The health parameters indicate that the chances of trafficked victims contracting
diseases, especially HIV/AIDS etc., are very high. It has also come up in the study that the
linkage between trafficking and HIV/AIDS is a domain which has not been seriously addressed.
In fact, the medical and health issues of trafficked victims remain shrouded in mystery, never

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properly attended to. There are certain instances of paramedical help reaching some brothels, but
nothing is institutionalised. Of late, certain efforts have been made to attend to psycho-social
issues, but the medical and medico-legal issues have been, by and large, neglected.
Added to the health problems is the extreme level of exploitation of girl children
living in the brothels. Among the interviewed brothel owners, 56.8 per cent stated that
women/girls in their brothels had their children living with them. As stated by them 285 girl
children, all below 18 years of age, were found to be staying with their mothers in the brothels,
on the day of interview. The vulnerability of these children to exploitation is obvious.
They were also used for illegal adoptions, illegal organ transplants, false
marriages, etc. Among the 510 children who were interviewed, 14.7 per cent were in the 610
age group, 21 per cent were in the 1112 age group, 27.6 per cent were in the 1314 age group
and only the rest were 15 years and above. These children had to leave their studies at a very
young age and this is an important factor in their becoming vulnerable to traffickers. Of the
children who were interviewed, 34.3 per cent could not continue studies due to poverty and 27.9
per cent had to quit studies to earn for the family. Among the respondents, 39.6 per cent hold
their family members or relatives responsible for trafficking them. A large majority (74.5 per
cent) were trafficked by the lure of jobs. The level of exploitation gets further exacerbated by the
fact that at the time of trafficking, 37.8 percent was less than 11 years old and 41.7 per cent were
in the 1114 age group. Another dimension of the problem is seen from the fact that a majority
of the victims trafficked for labor and servitude are children from marginalised sections of
society.
Trafficking is linked to smuggling of human beings. Whereas the latter is
considered an immigration issue, the former is a violation of human rights. The exploitation and
violence that the victim is subjected to, in some form or the other, continues during the entire
trafficking process and the post-trafficking scenario. This distinguishes it from smuggling.
Whereas smuggling is essentially a trans-border phenomenon, trafficking can be national or
international. The UNIFEM briefing kit (2003) delineates the distinction between smuggling,
migration and trafficking in such a way that it would facilitate proper understanding by the law
enforcement officials. This could be used as a guide book for training all concerned.
However, with painstaking efforts and continued persistence with the various

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police agencies across the country and with the cooperation of the latter, the data could be
collected from most of the states. The analysis of data for a six-year period (19962001) shows
that on an average, every year, 22,480 women were reported missing in this country. Among
them, on an average, 5,452 continued to remain missing and only the rest were traced or
returned. Similarly, during the same period, on an average, an annual number of 44,476 children
(male and female) were reported missing, out of which 11,008 children remained untraced every
year. This alarming data raises several questions where, why and how have these children gone
missing?
The IPC is the substantive criminal law with separate offences dealing with many
of the issues that constitute trafficking and related exploitation. The Goa Childrens Act, 2003 is
a state legislation which, for the first time in the legal history of India, has defined trafficking.
Though the Act is child-specific, the provisions are such that they could be considered as a
model for developing a comprehensive legislation. The research has brought out several points
on which the ITPA needs to be amended. These have been separately dealt with in the chapter on
recommendations. In addition to ITPA and IPC, there are several special legislations relating to
child labor, organ transplant, adoption, marriage, etc., which need to be effectively implemented
in combating the related issues of trafficking.
The study also brings out several good practice models. Due to the intervention of
the High Court of Mumbai and High Court of Delhi, there has been a paradigm shift in the
system of law enforcement and justice delivery. Details have been presented in case study Nos.
CS-DL-26 and CS-MH-17. Thanks to the monitoring by the Delhi High Court since 2001, in a
span of three years, the trial courts in Delhi have convicted more than 30 traffickers and several
kothas have been closed down. Effective systems of victim protection, compensation and
rehabilitation have been taken up. Strong networkings of several departments of government, as
well as a working partnership between governmental agencies and NGOs, have come to stay.
Thus, the national trend of victimizing the victims seems to be diminishing, at least in these
places. The research has also brought out innumerable instances, across the country, of good
practices in law enforcement, justice delivery, care and protection, prevention of trafficking, etc.
However, these initiatives are ad hoc in nature and mostly individual-oriented. Therefore, their
sustenance and continuation depends on their institutionalisation. This study points to the steps
and initiatives required in this direction. High Court interventions have shown the way. This has

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to be followed up by the administration. There is an urgent need to coordinate and dovetail the
functioning of various departments of the government in delivering justice to the trafficked
persons and also in preventing trafficking.
The role of community is an important aspect in addressing social issues.
Accordingly, the response by the community was also looked into. It brought to light the fact that
the origin and momentum in the anti-trafficking activities are basically due to several PILs
initiated by community based organizations and public-spirited individuals. This is obvious from
the Supreme Court decisions in Vishal Jeet vs. Union of India, Gaurav Jain vs. Union of India,
and the High Court decisions of Mumbai and Delhi, presented in the case studies (CS-DL-26 and
CS-MH-17). The research has brought out the essential and inevitable role of community in
prevention, protection and prosecution. Many case studies substantiate this point. The best model
that emerges is one of integrated functioning of government agencies, NGOs and corporates (see
case study No. CS-DL-30). There is a need for institutionalising the existing networks within the
country and across the borders. DWCD should take the initiative. Cross-border trafficking cannot
be prevented and dealt with, unless the law enforcement agencies network with the civil society
on both sides of the border. Moreover, there is a need for setting up regional cooperation, and
bringing in regional protocols and other mechanisms to facilitate the functioning of these
networks. SAPAT (South Asian Professionals Against Trafficking) and SAFAHT (South Asian
Forum Against Human Trafficking), which have been set up under the initiative of UNIFEM,
can be important instruments in this context. Research shows that among the NGOs working in
anti-trafficking, there is a lot of duplication of efforts and consequent wastage of resources and
efforts. At times unhealthy competition also causes duplication. Synergising efforts and
responses would be in the best interests of all concerned. Specialisation is called for ,to improve
professionalism. The list of NGOs working on anti-trafficking appended to this report presents
the area of specialisation of the NGOs concerned.
This dissertation has brought out the fact that poverty and illiteracy are the main
elements constituting the substratum for trafficking. Herein operates the demand factor. This
demand is fuelled by several other factors like the impunity with which the traffickers can
operate, thanks to the distortions in law enforcement. The low risk enjoyed by the exploiters,
coupled with the high profit in this world of crass commercialisation, ensures perpetuation of
trafficking. Whereas the traffickers and his cohorts have no restriction on court jurisdictions or

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the boundaries between police stations, districts, states, and even nations in carrying out their
trade, the enforcement agencies are bogged down by restrictions and limitations of all sorts,
which are effectively capitalized by the traffickers. The response by the government agencies
and even civil society has established that they have been able to address only the tip of the
iceberg. The trends and dimensions of the problem, which emerge from this study has exposed
the ultimate human rights violations that exist before, during and after trafficking, and has
accordingly brought out certain suggestions and recommendations in addressing them.

GAPS IN THE LEGAL FRAMEWORK OF TRAFFICKING IN INDIA

There are two classifications under which gaps have been studied first, under the Prosecution
Protection-Prevention matrix and second, under the Protocol, testing gaps with specific Articles.
Gaps Examined within the Prosecution-Protection-Prevention Matrix
Key gaps in the legal framework have an impact on all three areas of prosecution, protection and
prevention. These include:
(1) Non-ratification of UNTOC and Protocols, which is a major stumbling block as many
enabling provisions of the treaties cannot be availed of.
(2) Lack of a comprehensive definition of trafficking either as a common minimum platform for
the States to work on with each other, or even for punishing all forms of trafficking within the
countries. While the SAARC definition is there, it is limited to trafficking for sexual exploitation
and only covers women and children. While there is a definition in the Goa Children's Act, 2003
this only covers children and is not applicable beyond the boundaries of the State.
(3) Gender sensitivity is missing; even though there are laws for women, this does not translate
into a sensitive law. There are provisions in the ITPA, which penalize the victim, for instance.
Key Gaps in Prosecution
(1) There is no uniform definition of who is a child/ minor in terms of age. It varies in different
statutes; both civil, e.g., marriage or labor, and criminal, e.g., trafficking. Even within fields of
law like labor law, the definitions of a child/ minor vary according to the legislation.
(2) Trafficking is not often seen as an organized crime, and provisions relevant to organized
crime are not made use of in trafficking cases.
(3) Cooperation mechanisms are ad hoc or non-existent, as far as cross border trafficking is
concerned. Especially concerning:

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(a) Legal assistance
(b) Providing information
(c) Transfer of sentenced persons
(d) Joint investigations
(4) Prosecutions overall are not satisfactory.
Key Gaps in Protection
(1) There is sometimes no adequate distinction drawn between the trafficker and the victims;
e.g., in the case of prostitution or in the case of unsafe migration without documents. Sections 4
and 8 of the ITPA, have been used against the victim herself in some cases.
(2) There is no positive duty cast upon States to provide sufficient shelters or for rehabilitation or
rescue although enabling provisions exist in a number of legislations such as the ITPA and the
Juvenile Justice (Care and Protection of Children) Act, 2000. The conditions in the homes that
do exist need improvement.
(3) Civil remedies in tort law are not used against employers who violate labor standards or force
employment, though remedies are available in the Criminal Procedure Code and as established
by case law, and though there are a number of initiatives now being taken on bonded labor
(4) Financial support for existing programs is often insufficient.
(5) A conducive atmosphere to make it safe for victims to testify is not created. There is no witness
protection program too. Many witnesses turn hostile as a result. The lengthy proceedings and delays add
to this.
(6) The proceedings are not often gender sensitive and a woman victim is often unaware of
proceedings in her own case. She is not involved, nor does she have the services of legal counsel
to advise her. Women victims may also be put into protective homes against their will and
separated from their children.

Key Gaps in Prevention

(1) Trainings of government personnel as well as community awareness are done sporadically
145 and materials are not revised systematically.
(2) Awareness programs among the general public have to be strengthened along with widely
publicized helpline numbers. Community initiatives especially in vulnerable areas must be
stepped up with the cooperation of NGOs.

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(3) Licensing of recruitment agencies is currently not done, though there is a need to do so.
(4) Law reform, policy and prevention measures are slow to respond to newer forms of
trafficking. There have been several critiques even on the proposed amendments to the ITPA,
currently under consideration.
(5) There are often no set guidelines for safe migration; pushback is sometimes resorted to in
cases of women and others from Bangladesh.
Systems like referrals and identification of support staff and service providers or
authorities at different levels is absent, although there are a number of NGOs who do support
these activities.
Gaps under the Protocol
(1) India has not ratified the UNTOC or the Protocol. The Protocol is meant to establish global
standards, and a lack of ratification leads to a lack of a common understanding of trafficking that
can be legally enforced.
(2) The Statement of Purpose detailed in Article 2 of the Protocol requires India to prevent and
combat trafficking in persons, particularly women and children. It is also to protect and assist the
victims of such trafficking with full respect for their human rights. Laws dealing with legal aid
and juvenile justice for instance reflect this, though the laws on trafficking continue to be
criminalizing statutes which also have some strong provisions on rescue and other remedies.
(3) Promoting cooperation to tackle trafficking is not reflected in domestic laws, but has been a
part of political statements in SAARC and other forums. Trafficking within the country sees
transferring the person to her home State; however, inter-country trafficking often sees women
and children languishing in State run homes.
(4) A comprehensive definition of trafficking is lacking in India. The major law on trafficking
only has a definition on prostitution, which only partially covers trafficking. Though there is a
State law, there is no comprehensive central legislation defining trafficking.
(5) Organized crime also lacks a national law defining it, though there have been State laws
defining organized crime. However, aspects of organized crime are covered in the Penal Code,
such as abetment, common intention, etc., and there are separate laws on corruption as well.
These are used for domestic as well as for cross border trafficking.
(6) The Protocol in Article 3(d) defines a child as any person below the age of 18 years. Labor
laws in India show different standards of a child and the use of terms like 'minor' and 'child'

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simultaneously have compounded the confusion. A uniform definition of a child is a must. India
has also not ratified the Minimum Age Convention of the ILO or the Convention Concerning the
Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labor, and
this must be done.
(7) In compliance with Article 4 of the Protocol, there are some laws dealing with cross border
trafficking, but there is nothing comprehensive.
(8) On victim protection, many of the parameters of Article 6 have not been complied with in its
breadth, though there is legal representation provided, legal aid given, and compensation may be
available. There is also cooperation with governmental and non-governmental organizations in
repatriating victims, at least with Nepal and to a limited extent with others. Repatriation is
usually done. There is, however, no law detailing a temporary residence permit.
(9) On cooperation, one area where India has been trying to work is border measures, detailed in
Article 11. However, because of the porous borders, implementation is proving difficult.
Similarly, since the borders are porous, provisions on travel documents and identity documents
become difficult to enforce.
KEY RECOMMENDATIONS FOR INDIA
Some recommendations are common to prosecution, protection and prevention. These include
the following:
(A) There must be ratification of the UNTOC and the Protocols, so that there will be a common
blueprint and a common as well as comprehensive legal framework.
(B) In order to have a common understanding of trafficking and also to ensure that all forms of
trafficking are penalized, the definition under the Protocol must be adhered to. Even if this is not
done under one comprehensive law on trafficking, it must be woven into existing legal
frameworks.
(C) There must be a greater sensitivity to the violations of rights by women who have been
trafficked. The woman must have a say in legal proceedings pertaining to her matter. Women
should not be forced into homes or separated from their children and families. Cases are not
always taken up in designated courts dealing with violence against women.
Key Recommendations in Prosecution
(1) By amendment to specific provisions of statutes wherever a child or minor is mentioned, the
definition of a child must comply with the definition under the UNCRC. Every person below the

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age of eighteen years must be considered to be a child. This should cut across all laws whether
labor, criminal law or family law.
(2) Trafficking must be seen as an organized crime in criminal procedure and substantive
criminal law. Existing principles, such as common intention, conspiracy, etc., must be used in
cases of trafficking.
(3) Cases must be taken up in designated courts, e.g., courts dealing with violence against
women, and judges must be trained and sensitized to handle matters on trafficking. Cooperation
mechanisms must be set up with mutual contacts at different levels to make rapid action possible.
(4) There must be greater focus on trafficking for labor.
Key Recommendations in Protection
(1) There must be a clear line drawn between the trafficker and the victim. Victims must not be
further penalized, and a distinction must be made between trafficking on the one hand, and
prostitution or unsafe migration on the other, even if laws relating to border controls have been
breached by such persons.
(2) Rescue of trafficked victims should go along with effective rehabilitation and must be done
in a gender sensitive way. The survivors of trafficking should have the right to exercise
independent agency, rather than being compelled to do whatever the State thinks is best for them.
(3) Civil remedies like torts claims and compensation must be created and enforced against
traffickers or employers.
(4) States must commit finances for more and better schemes to rehabilitate victims.
(5) Witness protection must be explored to create an atmosphere free from fear within which a
victim can testify.
Key Recommendations in Prevention
(1) Anti-trafficking trainings must continue with renewed vigor for different implementing
agencies. Trainings must be done continuously and at three levels-
(a) Basic/ Qualification Training
(b) Trainings to in-service personnel, and
(c) Trainings for those deputed to anti-trafficking squads/ police/ border controls
(2) Employment and recruitment agencies must be closely monitored.
(3) There must be greater awareness at all stages of source, demand and transit, and
whistleblowers must be protected.

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 (4) Corruption among the police, border officials and other government personnel must be
addressed more firmly.
(5) Community initiatives must be strengthened in order to ensure greater awareness on
trafficking. Generating of labor opportunities locally and enforcement of labor standards
nationwide will reduce the vulnerability of labor to trafficking.

BIBLIOGRAPHY

ARTICLES
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 Juvenile Deviations and Protection in the Context of the Juvenile Justice Act, 1986, Indian
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BARE ACTS & RULES

The Bombay Devadasis Protection Act, 1934
The Bombay Prevention of Begging Act, 1959
The Bonded Labour System (Abolition) Act, 1976
The Child Abuse Prevention and Treatment Act, 1973
The Child Labour (Prohibition and Regulation) Act, 1986
The Code of Criminal Procedure, 1973
The Commissions for Protection of Child Rights Act, 2005
The Constitution of India, 1950
The Factories Act, 1948
The Indian Penal Code, 1860
The Juvenile Justice (Care and Protection of Children) Act, 2000
The Juvenile Justice (Care and Protection of Children) Bill, 2014
The Juvenile Justice Act, 1986
The Karnataka Devadasis (Prohibition of Dedication) Act, 1982
The Prohibition of Child Marriage Act, 2006
The Protection of Children from Sexual Offences Act, 2012

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 The Special Marriage Act, 1954

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Adenwalla Maharukh, Child Sexual Abuse and the Law, Mumbai, India Center for Human
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CASE LAWS

PUCL v Union of India (1997) 3 SCC 433

Vishal Jeet v Union of India and Others 1990 AIR 1412, 1990 SCR (2) 861
Gaurav Jain v Union of India 1990 AIR 292, 1989 SCR Supl. (2) 173
Neerja Chaudhary v State of Madhya Pradesh AIR 1984 SC 1099, 1984 (2) Crimes 511 SC,
1984 LablC 851, 1984 (1) SCALE 874, (1984) 3 SCC 243
Prerana v State of Maharashtra 2003 BomCR Cri, (2003) 2 BOMLR 562, 2003 (2) MhLj 105
Lakshmikant Pandey v Union of India 1984 AIR 469, 1984 SCR (2) 795

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 LAW JOURNALS AND REPORTS

Criminal Law Journal

Indian Journal of Criminology and Criminalistics
Indian Law Reports
Nagpur Law Journal
Supreme Court Almanac (SCALE)
Supreme Court Cases

COMMISSION REPORTS

The Law Commission of India, 42nd Report: Indian Penal Code, Government of India,
Ministry of Law, (June, 1971).
The Law Commission of India, 205th Report: Proposal to Amend the Prohibition of Child
Marriage Act, 2006 and other Allied Laws, Government of India, Ministry of Law and Justice,
(February, 2008).
Crime in India, Annual Reports of the National Crimes Record Bureau,Ministry of Home
Affairs, Government of India, (2008-2013).

NEWSPAPERS

Hindustan Times
The Hindu
The Times of India
The Indian Express

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A Dictionary of Modern Legal Usage, Bryan A. Garner, Second Ed., Universal Law Publication
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 Blacks Law Dictionary, Bryan A. Garner, Seventh Ed., West Group Publications, (1999).
Legal Dictionary, Basu and Mukerjee, Pioneer Books, (2003).
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Press, (2004).

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