WHAT IS TRAFFICKING
“Trafficking in persons” shall mean all acts involved in the recruitment, transportation, transfer, harbouring or receipt of persons within national or across international 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 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. Toolkit to Combat Trafficking in Persons, United Nations Office on Drugs and Crime – Vienna, United Nations, New York 2006. Page xi. Trafficking in human beings for the purpose of sexual exploitation, which mainly concerns women and young persons, may result in slavery for the victims. We condemn trafficking in human beings for the purpose of sexual exploitation, which constitutes a violation of human rights and an offence to the dignity and the integrity of the human being.

HOW TO IDENTIFY HUMAN TRAFFICKING

Smuggling of migrants and human trafficking both involve moving human beings for profit. However, in the case of human trafficking, two additional elements beyond smuggling must be present: there must be some improper form of recruitment, such as coercion, deception or some abuse of authority; and the activity must have been undertaken for some exploitive purpose, although that purpose need not necessarily have been fulfilled. from Manual for Training Police on Anti Human Trafficking 24
Not everyone is abducted or enticed away with false promises of good jobs there are others who go willingly, seeing the trafficker’s offer as the best option for themselves or their families, but later regret the decision when they find themselves trapped by debt and fear in abusive conditions.
Whether someone is “pushed” or “pulled” does not change the fact that she or he has been trafficked.

Who are more vulnerable to being trafficked and why?
The following are some groups of people that are more vulnerable to being trafficked for commercial sexual exploitation, forced labour and other forms of trafficking:

  • Girl children from vulnerable families/places
  • Women and girls who are illiterate and who are not aware of their rights
  • Women and girls from disadvantaged and marginalized groups (scheduled castes and tribes, particularly girl children from communities such as Bedia, Kanjar, Gujjar, Devadasi, Nats, etc.)
  • Women and girls from areas affected by bad marriages, natural disasters, political conflict, and other similar disabilities.
  • Young girls trafficked for child marriage
  • Young girls and young boys targeted for pedophilia
    Men and young boys are also trafficked for bonded/forced/exploitative labour



Where can COMMERCIAL SEXUAL EXPLOITATION take place?
The scene of crime10 (SOC) includes the source, the transit and destination points. In fact, in the case of CSE, the SOC is not limited to the place of exploitation – or, for example, the brothel alone. Therefore, for example, CSE can take place:

  • On the streets
  • In massage parlours
  • At bars, dhabhas
  • In the brothels
  • In vehicles used for transfer
  • In the form of escort service
  • At places where the survivor of trafficking has been sent for the purpose of recording pornography, transport of the same, and where the pornographic material is stored, purchased, used etc.
  • At other places



Trafficking is not synonymous to prostitution
Trafficking is not synonymous to prostitution. Trafficking is the process while commercial sexual exploitation is a result.

  • Prostitution (commercial sexual exploitation) is only one of the resultant features; the other being forced labour and other forms of exploitation.
  • A trafficked person is a victim and not a perpetrator or an offender.
  • A trafficker is a criminal who has infringed several laws and is capable of harming the victim.
  • Displacement of a trafficked victim is possible even without any movement in geographic space.
  • Trafficking is an organized and continuing crime involving multiple actors.
    It needs to be looked into from a gender perspective.
  • It is a violation of human rights.
  • Trafficking involves the following:
  • Movement of a person;
  • With deception or coercion;
  • Into a situation of forced labour, prostitution, servitude or slavery-like practices.



Commercialization of the exploitation and of the victim
Commercialization of the exploitation and of the victim: Due to the portrayal of women as sex objects, and as property by patriarchal society, women have acquired a ‘facevalue’ within the ‘market’ whereby their bodies have become commodities in a commerce based on the exploitation of sex (hence, CSE- Commercial Sexual Exploitation). Meena was forced into prostitution but she is a trafficked victim. How is that? Meena was displaced and forcibly recruited into commercial sexual exploitation (CSE). While prostitution is a punishable offence when there is commercial sexual exploitation of a person and any other person who makes profit from the same [Section 2(f) of ITPA 1956], trafficking is the whole (or any point of the) process of recruiting, contracting, procuring or hiring a person for commercial sexual exploitation (CSE) or for any other purpose. Trafficking is therefore the overall ‘process’ while prostitution/ commercial sexual exploitation/ forced labour is the ‘result’. Thus, Meena has been both trafficked and forced into prostitution as she has been:

  • Sexually exploited.
  • She has been abused by a person(s) for commercial purposes. Her consent is irrelevant.
  • She is the victim and not a criminal.



UNDERSTANDING THE INDIAN LAW
The Indian Constitution lays down clear guidelines with regard to basic human rights such as equality for all people. Trafficked victims are also human beings who have the basic inalienable right to live with dignity and equality. Some of the provisions under the Indian Constitution are listed as under. It becomes clear that the trafficked victims do not enjoy any of the following: Article 14 provides for equality
Article 15 prohibits discrimination on the grounds of religion, race, caste, sex, or place of birth or any of them.
Article 15 (3) provides for special protection in favor of women and children
Article 16 (1) covers equality of opportunity in matters of public employment
Article 21 provides right to life
Article 21(a) provides right to education
Article 23 prohibits trafficking in human beings and forced labour
Article 24 prohibits employment of children below the age of fourteen years in hazardous employment
Article 39 (f) provides that children be given opportunities to develop in a healthy manner and in conditions of freedom and dignity, and that childhood be protected against exploitation
Article 42 protects against inhuman working conditions
Article 46 directs the state to promote the educational and economic interests of women and weaker sections of society and protect them from social injustice and all forms of exploitation.
To elucidate, the following is a list of some of the human rights violations that take place on a trafficked person 21:

  • Deprivation of the right to life
  • Deprivation of the right to security
  • Deprivation of dignity
  • Deprivation of the right to access to justice and to having grievances redressed
  • Denial of access to health services
  • Denial of right to self determination
  • Denial of right to return to own community
  • Person is punished for two crimes (e.g. a person trafficked across a border is sometimes convicted for non-possession of passport/ visa, etc. and is simultaneously punished for ‘soliciting’)
  • Denial of right to representation
  • lDenial of right to be heard before decision making.

The Indian Constitution guarantees the equality of each and every citizen before the law as provided under Articles 14 and 15 without discrimination on the basis of sex. The following articles also provide respite to individuals specifically related to anti-trafficking:

  • Article 23 – prohibits the trafficking in human beings
  • Article 39 – directs the state to ensure that children are not abused and forced due to economic necessity to vocations unsuited to their age and strength; that children are given opportunities to develop in a healthy manner and that childhood and youth are protected against exploitation. Under the Indian Penal Code, a trafficked girl/woman has been subjected to a multitude of violations. She has been:


  • Displaced from the community, which is tantamount to kidnapping/ abduction (Sections 361, 362, 365, 366 IPC may apply)
  • Procured illegally (s. 366 A IPC)
  • Sold by somebody (s. 372 IPC)
  • Bought by somebody (s. 373 IPC)
  • Imported from a foreign country (if she hails from a foreign country, or even from J&K State, and is under 21 years of age (s. 366 B IPC)
  • Wrongfully restrained (s. 339 IPC)
  • Wrongfully confined (s. 340 IPC)
  • Physically tortured/injured (s. 327, 329 IPC)
  • Subjected to criminal force (s. 350 IPC)
  • Mentally tortured/harassed/assaulted (s. 351 IPC)
  • Criminally intimidated (s. 503 IPC)
  • Outraged of her modesty (s. 354 IPC)
  • Raped/gang raped/repeatedly raped (s. 375 IPC)
  • Subjected to perverse sexual exploitation (‘unnatural offences’) (s. 377 IPC)
  • Defamed (s. 499 IPC)
  • Subjected to unlawful compulsory labour (s. 374 IPC)
  • Punishment of criminal conspiracy (s. 120 B IPC) This list is only illustrative and not exhaustive. Undoubtedly, in every case, the trafficked person is a survivor of at least one or more of the violations listed above.