Human Trafficking: A Scar to the Civilization of Mankind

Trafficking of a human being is not a new thing in the history of human civilization. This practice is as old as the existence of mankind in this world. Generally human trafficking refers to the process through which individuals are placed in an exploitative or inhuman situation for the economic growth or physical pleasure of others. However trafficking can occur within a country or outside the country by crossing the border. Trafficked people are usually the most vulnerable and powerless minorities of a society. Normally they belong to the poorer areas where opportunities are limited and may consider them as a class or race in this context. The trafficking of human being take place for the purpose of exploitation and this could be categorized as sex based and non-sex based. Sex based category includes trafficking for prostitution, commercial sexual abuse,pedephilia,pornography, cybersex and different types of hide form of sexual exploitation that take place in some massage parlor, call girls place and other destitute area. In the words of Essien D. Essien², over the past years at least four million men, women and children worldwide bought,sold,transported and held against their will in slave-like conditions. In this modern form of slavery, which is known as ‘trafficking in persons’, traffickers use threats, intimidation and violence to force victims to engage in sex acts or to labour under conditions comparable to slavery for the traffickers’ financial gain. Thus the in human trafficking the actual practice of the trafficker is the use of force, fraud and coercion to relocate individuals and make them work of any kind against their will. So an attempt here made to find out pros and cons of trafficking and the remedy to abolish the evil practice of trafficking from the society.

The outsource of trafficking may be traced back since the period of Roman civilization and the practice of trafficking of human being were observed in the form of slavery . With the rise of new imperialism, slavery had become an integral part of the colonial system of the European countries. However, the earliest form of global trafficking was noted in eighteen century in the form of African slave trade .American and European continents were observed to be the middleman at that time. Before coming of the British law on slavery in 1807, this type of trade was both considered as legal and government tolerated. After the cessation of the African slave trade, the practice of white slavery came to the knowledge of civilized people. White slavery means procurement by use of force, deceit or drugs of a white woman or girl against her will for prostitution. However, in 1899 and then in 1902, international conference against the practice of white slavery were organized in Paris. In 1904, the International agreement for the suppression of white slave traffic was signed and adopted. It was the first international agreement against the human trafficking which was adopted by the entire civilized nation throughout the globe. The main purpose of this agreement was to ensure the protection and repatriation of the victims. Thus the criminalization of white slavery did occur and it was recognized only after the adoption of the International Convention for the Suppression of White Slave Trade in 1910.

It is worth mentioning here that it is the first world war, who arose the first international organization among the nations, ie., the League of Nation, lead the path of humanity against servitude. The mandates given to the various allied powers over the nation, more particularly in Africa and the Middle East brought attention regarding the international trafficking, more particularly of the white women, along with men and children. In 1921, at the League of nation, 33countries signed the International Convention for the Suppression of Traffic in Women and Children. At that time human trafficking was considered only as the trafficking for the purposes of sexual exploitation and prostitution.

By the end of the Second World War, the UN Charter was adopted by the United Nation. After that, in 1948 the Universal Declaration of Human Rights was adopted by the United Nation. The Declaration was the first attempt to recognize internationally the human rights of man, including women and its existence with dignity. After that various attempts had been taken by United Nation to suppress and abolish the slavery completely. Finally, the United Nation adopted the Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, 1949 by the General Assembly Resolution no.317 (IV)³. The Preamble of the Convention recalled that prostitution is incompatible with the dignity and worth of the human person. The Convention consists of 28Articles and has Final Protocol, under which the Convention shall apply.⁴ This Convention gives some security towards women against exploitation of prostitution at the international level and also provide for punishment for any such exploitation or practice. Moreover, the Convention considers the case of recidivism and voluntary prostitution and suggests abolition of any domestic law prevailing in member states under which prostitution is recognized.⁵ One of the main themes of this Convention is the rehabilitation of the prostitutes and prevention of international flesh trade. The Convention also provides for the arrangement of repatriation of destitute victims of international traffic. However the Convention does not include the practice of international sex tourism of girl child. Nevertheless it is the first legally binding international agreement against human trafficking among the nation. Unfortunately only 66 nations have ratified this Convention till now.

Normally, trafficking has been used in international legal instruments to refer to the movement of and trade in connection with slavery, prostitution and sexual exploitation. In recent years, increased attention to the global problem of trafficking and sex tourism in persons has led to a widespread push to develop a working definition of trafficking that encompasses the full nature and scope of this type of abuse. In February,2000, the office of the United Nations High Commissioner for Human Rights(UNHCHR), the office of the United Nation High Commissioner for Refugees(UNHCR), the United Nation Children’s Fund(UNICEF), and the International Organization for Migration(IOM) submitted a joint statement to the Ad-hoc Committee recommending the following definition of trafficking: “the recruitment ,transportation, transfer or harboring or receipt of any person for any purpose or in any form, including the recruitment, transportation, transfer or harboring or receipt of any person by the threat or use of force or by abduction, fraud, deception, coercion or abuse of power for the purposes of slavery, forced labour and servitude which should be understood to include forced prostitution.”

The above definition of trafficking made it clear that trafficking includes not only the trafficking of women but it includes children and man also. Over the last 50 years, it is observed that other form of exploitation such as organ harvesting and labour transportation also grew in the new scope of trafficking. Eventually in 2000, the United Nation adopted the UN protocol to prevent, suppress and punish trafficking in person, especially women and children. It is the first agreement which acknowledge the modern day slavery, as well as male victim of human trafficking. Later the definition was expanded to include organ harvesting, slavery and forced labour through migration.

It is true that the International Law recognizes trafficking as well as prostitution as an acute violation of human rights and prohibits its exploitation. The only way that the State has to respect their obligation is to eliminate the exploitation of prostitution. Human trafficking involves not just sex trafficking, but also labour trafficking which may sometime cause trauma to the survivor. Article-4 of UDHR, 1948 prohibits slavery and forced labour. It is specifically stated in the Article that no one shall be held in slavery or servitude and no body shall be required to perform forced or compulsory labour. Similarly, Article-6 of Convention on the Elimination of all forms of Discrimination against Women, 1979, specifically stated that the State Parties to the Convention shall take appropriate measures, including legislation to suppress all forms of traffic in women and exploitation of prostitution of women. However, in terms of geographic spread and volume, the United Nation criminalized the trafficking under the protocol of Transnational Organized Crime in the year 2000. In the same year Act of Trafficking Victims Protection Act, (TVPA) was adopted for the victims of different types of trafficking. Apart from the above Act, there was multiple reauthorization of Trafficking Victims Protection Act in the year 2003, 2005.2008,2013, 2014 and 2015. All these Acts provides for the protection of the victims from commercial sex work and slavery. Moreover the Act of 2014 provides not only for the prevention of sex traffic, but also tries to strengthen the families of the victim.

In India, the history of paid sex is not a new or unique concept. The roots of trafficking are deeply embedded in our age-old traditional prostitution systems prevalent in several parts of the country. The devadasi or the so called concept tawaif are not new in Indian ethical and social life. In India trafficking was said to be the result of the vulnerable conditions of women involved and the situations were made worse by their social exclusion arising from the gender discrimination and unequal development practices within the society that marginalizes females for employment and education.

Historically in India, prostitution was a tolerated vacation. In fact, the history of many of the fashionable red-light establishments within the country dates back to the Mughal period. Evidence of females living on the earnings of their beauty is paramount within the documented history, like Kautilya who has written in-depth treaties on prostitution in his book “The Arthashastra”. Another example is Devadashi, a euphemism for temple prostitution was socially sanctioned form, recognized in several parts of the country. Under the Devadasi system, girl child were dedicated at puberty to the Goddess in her service and henceforth were referred to as a Devadasi, or a servant of God. However, religious and political development over centuries led to the decline of the situation of Devadasi, who ultimately unable to sustain themselves and turned to prostitution work for their livelihood. Despite being banned by the law, it is still prevalent in certain forms in Maharastra, Karnataka and Andhra Pradesh.

More than this, in India, human trafficking is observed as the most-abominable violation of human rights which includes trafficking of men, women and children of both sexes. Trafficking in human beings take place for the purpose of exploitation which in general could be categorized as sex-based and non-sex based. The former category includes trafficking for prostitution, commercial sexual abuse, pedophilias, pornography, cybersex and different types of disguised sexual exploitation that take place in some of the massage parlor, beauty parlors, bars and other manifestations like call girls racket, friends, clubs etc. Non sex based trafficking could be for different types of servitude, like domestic labour, industrial labour adoption, organ transplant, camel racing, marriage related rackets etc. Trafficking both for commercial sexual exploitation and for non sex based exploitation is a transnational and complex challenge as it is an organized criminal activity, and extreme form of offence of economic empowerment and social justice. The trafficking of women and children causes untold miseries as it violates the rights and dignity of the individual.⁶ Conventionally, the reason for human trafficking can be categorized in the following types:

• Trafficking for forced labour. Primarily comes from developing countries.
• Trafficking for forced criminal activities.
• Trafficking of women and children for sexual exploitation.
• Trafficking for the removal of organs.
• Trafficking for the purpose of smuggling.

The above categorization is not exhaustive. Sometime the trafficking due to debt bondage or some other reason may happen under inevitable circumstances. Hence the causes for human trafficking may also streamline in the following heads:

• Mass displacement of people from one place to another.
• Conflict situation arising in particular area.
• Extreme poverty.
• Lack of opportunity to access for education and job establishment.
• Political conditions of the area.
• Violent social and cultural practices.
• External aggression.

It is generally believed that trafficking takes place only from one country to another by crossing the boundary. But with the development of the society and modernization individual notions, trafficking also taking place within the country from province to province and also rural areas to urban areas. This fastest growing criminal activity has various factors which give fuel to human trafficking. The factors responsible for the existence of trafficking are:

• Demand factors.
• Supply factors.
• Expectation factors.

The rapid growth of industrialization, migration of workers, cheap labour requirements etc. are some causes for increase of demand factor for trafficking. Again economic marginalization, breakdown of traditional livelihood options, low status in society, and internal displacement due to climatic change ete are some supply factors affecting the condition of trafficking. Similarly the effects of globalization, upward social mobility, escape from poverty etc. are some expectation factors responsible for trafficking.

To restrain trafficking, the Constitution of India has adopted some measures under constitutional and fundamental rights for the citizen of India. Article-23 of the Constitution prohibits traffic in human being and beggar and other similar forms of forced labour.⁷ It is also mentioned in the Article that any contravention of this provision shall be an offence punishable in accordance with law. Thus, in the case of Raj Bahaduar⁸ the Court had stated that ‘traffic in human beings’ means selling and buying men and women like goods and includes immoral traffic of women and children for unethical or other purposes. Though slavery is not expressly mentioned in Article-23, but, it is included in the expression ‘traffic in human being’. Under Article-35 of the Constitution of India, Parliament is authorized to make laws for punishing acts prohibited by Article-23. In pursuance of this Article, Parliament has passed the Suppression of Immoral Traffic in Women and Girls Act, 1956⁹, for punishing of traffic in human being. This Article-23 protects the individual not only against the State but also against the private citizens. It imposes a positive obligation on the State to take steps to abolish evils of traffic in human beings and beggar and other similar forms of forced labour wherever they are found to be the victim. This Article also prohibits the system of bonded labour in any form both against the citizen as well as against the non-citizens.

Similarly in the case of Peoples Union for Democratic Rights-vs- Union of India,¹⁰ the Supreme Court considered the scope and ambit of Article-23 in detail and strikes at traffic in human and beggar and other forms of forced labour. Bhagawati,J. while construing the word force labour said that if a person has contracted with another to perform service and there is consideration for such service in the form of liquidation of debt or even remuneration, he cannot be forced by compulsion of law, or otherwise to continue to perform such service as it would be amounted to forced labour within the meaning of Article 23. The word force must therefore be construed to include not only physical or legal force but also force arising from the compulsion of economic circumstances which leaves no choice of alternatives to a person in want and compels him to provide labour or service even though the remuneration received for it is less than the minimum wage.

It is an unavoidable fact that the sex industry in India has rapidly expanded over the past several decades. It involved sexual exploitation of persons, predominantly women and girls, involving activities related to trafficking for prostitution, pornography, sex tourism and other commercial sexual and organ transporting services. Rescuer from the developed countries, in the name of helping the victims of underdeveloped and undeveloped countries promoting for economic development and international understanding, increase the tourist activity along with societal activity to exploit the girls and children under the guise of tourism. The world tourism organization became actively involved in the struggle against this organized sex tourism, more particularly, the sexual exploitation of children.

Paedophilia pertains to the manifestation and practices of sexual desire that some adults develop for prepubescent children of both sexes. It is observed that recently the number of tourists traveling to Asia for sexual desire with minor children become rampant. During the tourist season the children below fourteen years of age are trafficked to different tourist places every year for the foreign paedophiles.¹¹According to Tehelka, hundreds of Europeans-British, German, Dutch, French, Swiss nationals visit Goa to seek children for sexual gratification. Child pornography, which is the audio-visual material using children in a sexual context, is another form of commercial sexual exploitation of the trafficked prevailed in India. Thus India and other South-East Asiatic countries have converted as the venture of choice for foreigners as there are fewer laws against child sexual abuse and cheap rate for trafficking.¹²

Apart from this, for the offence of trafficking for prostitution, the Indian Penal Code, provided punishment under section-366-A and 366-B. These sections try to prevent prostitution by strict penal action. Sections 372 and 373 IPC make selling and buying of girls of any age for the purposes of prostitution a heinous crime for which ten years imprisonment and fine can be awarded. These sections conjointly punish both the giver as well as the receiver of minor girls for immoral purposes, illicit sexual intercourse or prostitution. Section-372 protects the minors even against her own parents or other lawful guardians. Section-373 strikes at the bawds, keepers of brothels and all others who fatten on the profits arising from the general practice of prostitution of girls.

The slur of human dignity through prostitution, however, cannot be minimized with the help of Constitution and Indian Penal Code. On 9^th May, 1956, the Indian parliament had passed an Act called Suppression of Immoral Traffic in Women and Girls Act, 1956(SITA). The Act aimed at suppressing the evils of prostitution in women and girls and to provide opportunity to fallen women and girls to rehabilitate themselves as decent member of the society. But the Act did not succeed in ample measure to eradicate or suppress the evils of prostitution and so it was drastically amended in 1978. Besides other stringent measures, one progressive measure was the opening of probation under the Probation of Offenders Act. However it was soon realized that the measure needed to be more drastic and found that the provision for release on probation was abused. So the Parliament, by its 44^th Amendment Act, 1986 repealed the provisions relating to probation. It also realized that time had come where male prostitution whether voluntary, forceful or deceitful should also be under the ambit of this Act, and hence the name of the Act had been changed from SITA to Immoral Traffic (Prevention) Act, 1956. In place of women and girls the Immoral Traffic (Prevention) Act, substitute the word ‘person’ and thus tried to cover both men and women.

Furthermore, the Act consists of 25 Sections and Section-3 and 4 of the Act provides for the punishment for keeping brothel or persons living on the earnings of prostitution. However the Act didn’t cover the minor children. The Act also does not provide for the punishment of a woman who voluntarily engages herself to the practice of prostitution. Again Section-22B of the Act provides special court to try cases summarily, so that women rescued from brothels can get immediate remedy and protection under adequate legal system. It may be mentioned here that the Immoral Traffic (Prevention) Act is social welfare legislation, and therefore it have the provision for rehabilitation and remedial measure. Hence the limitation is that this legislation is not purely a penal legislation and also is not exhaustive. In Vishal Jeet-Vs-Union of India and others¹³, the Supreme Court has reiterated the view that many unfortunate teen-aged female children and girls in full bloom are being sold in various parts of the country, at far paltry sum even by their parents, finding themselves unable to maintain their children on account of acute poverty and unbearable miseries and also hoping that their children would be engaged only in household duties or manual labour. But those who are acting as pimps or brokers in the flesh trade and brothel keepers either purchase or kidnap them by deceitful means and unjustly and forcibly inveigle them into flesh trade. Thus the purpose of the Act is to suppress the evils of prostitution in women and girls achieving a public purpose, namely to rescue the fallen women.

The Supreme Court also has the view that in spite of the Act and the Constitutional provision it cannot be said that the desired result has been achieved. It cannot be gainsaid that a remarkable degree of ignorance or callousness or culpable indifference is manifested in uprooting this cancerous growth. Despite the fact that this malady is not only social, but also socio-economic problem, effective measure by way of stringent legal system or progressive social awareness is not taken by the appropriate authority. In India, economic empowerment at all classes of the society is another pivotal to rejuvenate against this social menace.

Human Trafficking in Assam: A case study:

Assam, a place of north – east India is famous with its rich flora and fauna. However its rich heritage cannot curb down the myth of human trafficking. Now a day, in Assam trafficking of human being is not a new phenomenon. More particularly in the ethnic conflict region like Kokrajhar, the availability of drugs enhances the trafficking related vulnerability and exploitation of children and women. Trafficking in North-East region, particularly in Assam, occurs at two levels. First, there is the internal trafficking of children and women from conflict affected rural areas for domestic work and prostitution.¹⁴ There is another racket of organ trafficking prevailing in Assam¹⁵. Secondly, at the international level, there is trafficking of women to other South-East Asian countries like Bangladesh, Bhutan, Bangkok via Myanmar (Burma) for various purposes, such as for drug trafficking, labour, bar girl prostitution,¹⁶etc.It may be mentioned that this internal trafficking mainly exists in the border district of North East Region. The combination of poverty, ethnic conflict, unemployment, gender inequality, loopholes in existing legislation, inadequate law enforcement mechanism enables trafficking in girls to thrive in Assam. It is a common practice in Assam that the children belonging to poor family are send to the wealthy family in the urban areas to work for the livelihood of their family. Now a days this practice has been exploited by the trafficker to lure the children and supply them to those wealthy families as forced domestic labour. The mushrooming domestic servant recruitment agents coming to Assam to lure children has the clear indication of large trafficking network operating in the region. The reporting cases of missing girls from the region, alleged by their parents indicate that large extent of women and girls are trafficked to other metro cities of India. As per the report of the National Human Rights Commission, while referring the trafficking of women and children, stated that there are 55% increase of the report of missing women in Assam. The data collected from the Deputy Commissioner and Nedan Foundation of Kokrajhar reveals the fact of high magnitude of the problem which required undertaking by the Government immediately.

It is a well settled fact that human trafficking including prostitution remains as a running sore in the heart of civilization and it destroys all the moral values towards women as well as human civilization. It is a violation of the human right towards the existence of humanity. Living a life in a dignified way is the utmost necessity of every human being. To repress this menace of trafficking it requires an amended, speedy and comprehensive legal action with corroboration of strict penal provision.

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Footnotes

1. Author is an Associate Professor at University of Science and Technology, Meghalaya, India.

2. Handbook on Research on Present and Future Paradigms in Human Trafficking. Essien D. Essien. IGI Global. Publisher of Timely Knowledge ↩

3. Trafficking and The Law . Humann Rights Law Network. !st Edi-2006.P-77 ↩

4. Artticles 23 to 26 ↩

5. Article-1 to 4. ↩

6. Women and Child Trafficking in India, A Human Rights Perspective. By Rekha Roy. Akansha Publishing House. New Delhi. P. 3 ↩

7. Constitutional Law of India, Dr.J.N.Pandey. Central Law Agency.52 Edi.p.349. ↩

8. Raj Bahaduar –Vs- Legal Remembrancer, AIR 1953 Cal.522 ↩

9. Now it is “The Immoral Traffic (Prevention) Act,1956”. ↩

10. AIR 1982 , SC1943. ↩

11. Offences against Children &Juvenile Offence.-Dr.S. K. Chatterjee. Central law Publications.1^st Edi. P.66 ↩

12. Offences against children &juvenile offence- S. K. Chatterjee Central law Agency. 1^st edi. P. 66 ↩

13. AIR (SC)(1990)1412 ↩

14. Survey by NEDAN FOUNDATION. NGO. Kokrajhar District. ↩

15. Pratidin Bereau. https://www.pratidintime.com.org ↩

16. Ibid. ↩