Human trafficking has been defined by various bodies like the various agencies of the United Nations, United States of America, SAARC, etc
Although there are many sources of the definition of human trafficking there is not much difference among them. In fact there is a considerable agreement among them. The definition by SAARC (South Asian Association for Regional Cooperation) is limited to the end purpose of prostitution. For the precise definitions, click here.
Here we shall try to understand the meaning of the term human trafficking.
You will find that the term ‘trafficking’ is often used as a quick reference to the term and phenomenon ‘Human Trafficking’. You should keep in mind that it may not be fully correct as currently we are encountering trafficking in humans as well as trafficking in drugs.
You will also come across the terms ‘sex trafficking’ and ‘bride trafficking’ Here the reference is to the end result or purpose of trafficking. When it is for inducting the trafficked person in the sex trade it is often called as sex trafficking. Similarly, when a woman is trafficked for exploiting her variously in the prime role of a common wife then it is called bride trafficking.
The term ‘child trafficking’ refers to that category of human trafficking where the object of trafficking is a child.
Trafficking is colloquially used for the movement of vehicles from one place to another.
Trafficking, in short, is the buying, selling, moving, confining of persons for illegal and criminal purposes with force, deception and such other means. Persons are trafficked for commercial sexual exploitation (conventionally called prostitution), servitude, bondage, forced labour and other criminal purposes.
The end purpose of trafficking is to make profit for the trafficker and not for the person subjected to trafficking.
Almost always illegal criminal and unethical means starting from lure, deception, false promise, etc to drugging, criminal force, wrongful confinement, kidnapping/abduction etc are used to accomplish this movement.
Hence human trafficking has three components-
the Act (procuring, buying, recruiting, taking, receiving, harbouring, transporting, transferring, a person
the Means – Force, Fraud, Deception, Coercion, buying, drugging, wrongfully confining, kidnapping/abducting, and such other criminal means
the Purpose- the purpose is to exploit the person for someone else’s gains
e.g. sex trade, bonded or forced labour, organ harvesting and trade, slavery, slavery like conditions, servitude, illegal adoption (baby selling), mail bride, human sacrifice, child soldiers. The activities indicated in the point on purpose above are actually the crimes to which the person is subjected at the destinations hence they are aptly called the destination crimes
Yes! Human trafficking is present in almost all countries regardless of their;
- Size (small or large countries)
- Economic standing (rich or poor)
- Technological advancement
- Religious status (religious or secular)
- Economic order (state ownership, liberal economy or mixed economy)
- Political ideology (communist, liberal, democratic, socialist)
- History of civilization (old civilizations as well as new nations)
It is often seen that the economically backward countries and politically disintegrated societies are high on supplying the trafficking victims, while the rich, stable, and technologically advanced countries are low on the supply and high on the exploitation of the trafficked victims.
Yes! Trafficking is different from prostitution.
Trafficking refers to a set of acts such as procuring, buying, selling, moving, transporting, etc. of human beings through deception, coercion, force, fraud, compulsion, etc. Prostitution is one of the purposes for which a person is trafficked.
In technical terms, change of place often happens in most of our normal life activities. If by change of place we mean across districts, states, nations and continents, then that is not the essential condition for human trafficking; although we often come across such shifts. The definitions use the term ‘Transfer’ which refers to the change of status or situation of the person subjected to trafficking, without the change of place.
Many young girls are employed in certain types of establishments and jobs in one position, and then with force or fraud, they are made to engage in an exploitative life. For example, girls and women who work in the cigarette industry for rolling beedis, or serve liquor in the ladies bar, or work as dancers in dance bars are soon pressurized to sell their body for sex without having to change their place of residence or work. This is what is suggested by the use of the term ‘Transfer’ in the definitions.
Anyone who is vulnerable and available and by trafficking whom profits can be made by the trafficker, carries the risk of getting trafficked. Infants are trafficked for illegal adoption, organ harvesting and organized beggary. Children get trafficked for all these as well as for the labour sector. Young people get trafficked for labour sector exploitation, for the sex trade, for shadow entertainment. Young women also get trafficked as common or temporary brides. Old people get trafficked for organ harvesting. People of every religion, political system, age, race, creed get trafficked. Poor people, unsupported and unprotected persons people of poorer countries, belonging to lower social strata are most susceptible to getting trafficked.
Human trafficking being a disguised heinous crime it is impossible to have any reliable statistics on it. The data keeping and data management standards of different countries are extremely wide ranging
The definitions of trafficking followed by different countries are also different. The understanding of the people engaged in collecting and quoting statistics about human trafficking across countries and withing countries is widely different.
The official data that are maintained are that of reported incidence of the trafficking crimes. Many countries do not have the crime of trafficking codified in their law books. e.g. India introduced the term and offence ‘trafficking’ in its law book only in the year 2013.
All these factors make it impossible to have any reliable statistics about human trafficking.
What get circulated in the name of statistics deserve to be aptly called as sheer ‘guesstimates’ and not even estimates.
When monetary and other incentives get attached with making higher guesstimates the guesstimates tend to snowball and become bigger in volume.
It does not mean that the problem of human trafficking is any less serious or not alarming. The inability to record or count the crime does not discredit the overall perception that human slavery is not at all over and that it is being encountered rampantly. As no one has any data about the historical incidence of slavery and human trafficking making a well founded empirically established comparative statement on the incidence may not be possible. However, that does not discredit the overall concern expressed by different stakeholders that the incidence is rising.
To the extent the various stake holders across the world follow a common definition and make a responsible and verified statement about the incidence as witnessed by them there is a hope and a way to arrive at a better idea about the overall incidence.
Yes, the world has awakened to the alarming problem of human trafficking and numerous efforts are being made to combat trafficking and restore the dignity of the persons victimized by the trafficking crime.
The States of the world have together and individually passed laws, declared policies and Plans of Action to combat trafficking in persons. They have announced programmes and allocated financial and managerial resources to accomplish the anti trafficking agenda.
Many civil society organizations and committed individuals have contributed enormously to the anti trafficking cause. The civil society sector is on the forefront and has made great path-breaking contributions in various domains from prevention & protection to rehabilitation & repatriation.
Human trafficking is carried out with the end purpose of subjecting a person so trafficked to a life of exploitation for the profit of person other than that person. The life of exploitation varies and includes although not limited to sex trade/prostitution, slavery, servitude, bonded labour, indentured labour, organized beggary, human organ harvesting and trading, mail brides, adoption/baby selling rackets, camel jockeying, etc.
All the above mentioned activities may be aptly called ‘the destination crimes’. The activities named as destinations crimes are prohibited by law in most countries. In India there are separate laws to address each type of the destination crime.
Yes! In India there are laws against the abovementioned destination crimes. e.g. Immoral Traffic (Prevention) Act 1056, Bonded Labour Systems (Abolition) Act 1977, Transplantation of Human Organs Act XX, Bombay Prohibition of Beggaries Act XX, CARA Guidelines for adoption, Child Labour ( Prohibition and Regulation) Act, Protection of Children From Sexual Offences Act 2012, Devadasi Abolition Acts of some states, Indian Penal Code 1860 etc
India does not have a union of state law specifically or exclusively against trafficking. The various laws against the destination crimes also cover the offence of trafficking.
There are some provisions in the principal criminal law of India the Indian Penal Code -1860. e. g. Until 2013 there was a provision that declared slavery as offence in Section 370.
Through an amendment in the criminal laws in March 2013 Sec 370 was replaced by a definition of trafficking an declaring it as a punishable offence.
Commercial Sexual Exploitation is a better term for what is traditionally and conventionally but inaccurately referred to as prostitution. It is an act;
- carried out in an organized manner
- of sexual exploitation of a person
- involves an exploiter
- the exploitation is effected singularly or in an organized manner
- it is for the profit of the exploiter
- by providing to the buyer access to the sexual faculties of the exploited person
- the person’s sexuality is sold to any customer who buys it.
The term commercial sexual exploitation essentially indicates exploitation as an essential characteristic of the transaction. The word Commercial in it indicates the commoditization of a human being, and presupposes production/ collection (procurement), storage, transport, packing, labeling, display, advertisement, sale, retail outlet, sales manager, and commission.
The term prostitution was conventionally understood as a solo act of selling of sex by a woman.
The term prostitution in itself did not convey exploitation.
The conventional term prostitution did not indicate the presence or role of any person other than a woman seller and a male buyer.
The term prostitution did not convey the reality accurately but wrongly projected the woman as an independent solo actor acting on her own accord, for her own profits by selling her sexuality.
The definition also did not take note of the criminal organization of the flesh trade and the role of the procurers, traffickers, managers, brothel keepers, pimps and financiers.
The term Commercial Sexual Exploitation (CSE) covers the reality far more accurately as compared to any other terms, which have been used to refer to the phenomenon under discussion.
Sec 2 (g) of the Bonded Labour System (Abolition) Act 1976 defines bonded labour as follows;
(g) “bonded labour system” means the system of forced, or partly forced, labour under which a debtor enters, or has, or is presumed to have, entered, into an agreement with the creditor to the effect that,-
- in consideration of an advance obtained by him or by any of his lineal ascendants or descendants (whether or not such advance is evidenced by any document) and in consideration of the interest, if any, due on such advance,
- in pursuance of any customary or social obligation,
- in pursuance of an obligation devolving on him by succession,
- for any economic consideration received by him or by any of his lineal ascendants or descendants,
- by reason of his birth in any particular caste or community,
(1) render, by himself or through any member of his family, or any person dependent on him, labour or service to the creditor, or for the benefit of the creditor, for a specified period or for an unspecified period, either without wages or for nominal wages, or
(2) for the freedom of employment or other means of livelihood for a specified period or for an unspecified period, or
(3) forfeit the right to move freely throughout the territory of India, or
(4) forfeit the right to appropriate or sell at market value any of his property or product of his labour or the labour of a member of his family or any person dependent on him,
and includes the system of forced, or partly forced, labour under which a surety for a debtor enters, or has, or is presumed to have, entered, into an agreement with the creditor to the effect that in the event of the failure of the debtor to repay the debt, he would render the bonded labour on behalf of the debtor;
1 [Explanation.-For the removal of doubts, it is hereby declared that any system of force or partly forced labour under which any workman being contract labour as defined in clause (b) of subsection (1) of section 2 of the Contract Labour (Regulation and Abolition) Act, 1970 (73 of 1970), or an inter-State migrant workman as defined in clause (e) of sub-section (1) of section 2 of the Inter-state Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979 (30 of 1979), is required to render labour or service in circumstances of the nature mentioned in sub-clause (1) of this clause or is subjected to all or any of the disabilities referred to in subclauses (2) to ( 4), is “bonded labour system” within the meaning of this clause].
Migration is a relatively permanent shift of abode by a person, family or a group of people. Historically the term migration has been used to indicate a voluntary shift of abode for betterment. There was a routine shift of abode of women outside their village or district or city due to marriage. In the developing countries there is also a similar shift in the abode of the student population as it moves to higher education. In other cases more important jobs made people leave their place of origin and shift to newer places often permanently.
Historically persons, families, and groups of people also shifted their abode due to certain unavoidable situations like war, organized violence (riots, ethnic cleansing), famines and droughts, manmade disasters like earthquakes, forest fires, and tsunamis, outbreak of epidemics, industrial depression, project displacement, or personal mishaps like marital desertion, abandonment, kidnapping, etc. The latter category has a striking element the element of lack of voluntarism or choice. Hence it is better described by the terms forced migration, eviction, uprootment, displacement or stress migration. The element of voluntarism makes migration distinctly stand out from the second category of shift namely eviction.
Trafficking is not the same as migration since the element of consent or voluntarism is missing. In some cases the element of voluntarism is apparent but closer analysis shows that the consent is for the apparently fair plan suggested by the trafficker as a part of his larger game of deception.
When trafficking is interpreted as migration the crime inherent therein is made invisible or trivial which is incorrect and unfair.
Trafficking and migration are however closely related. Unsafe migration often glides into trafficking easily.While some people make the conceptual error some others do it purposely as they have interest in the destination crime of human trafficking such as labour exploitation, sex trade etc.
No and Yes!
In general the Constitution of India gives the right to its citizens to move around freely in any part of the country.
Articles 19 (d) (e) and (g) give the following rights to the citizens of India;
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India;
(g) to practise any profession, or to carry on any occupation, trade or business.
The State is authorized to put some restrictions on the movement such as certain scheduled areas and army areas etc.
There is a union law The Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979 that governs the conditions of migrant workers across the states of India with a view to protect the workers.
As regards the movement across the national borders there are various country specific immigration procedures. Although the human movement across the countries of the SARC region have been made more liberal in recent years strict procedures still govern the movement in most cases. There are no immigration procedures across the Indo Nepal Border whether for tourism or for employment. But strict laws govern the movement between India and Pakistan.
In most cases of human trafficking the victim is shifted from his/her place of origin to the destination place where exploitation occurs routinely. In some case of sexual exploitation the exploiters travel long or short distances and visit the countries and foreign places where they can sexually exploit victims without mush risk or fear of the law. This phenomenon is termed as sex tourism. Today, a substantial part of business and entertainment tourism includes sex tourism. Some places have emerged as the world capitals of sex tourism e.g. Bangkok in Thailand, Amsterdam in the Netherland and Goa in India.
No! Domestic tourism is as much a reality as international tourism.
Yes! It has been observed that children are the prime victims of sex tourism. In general the sex tourists demand virgins due to a variety of myths surrounding the idea of sex with children. The fear of contracting HIV/AIDS through casual sex encounters has created huge demand for children and virgins in the sex trade as the tourist believe that they are least likely to be infected and least likely to infect others.
Tourism offers several benefits to a tourist prominent among them for a sex tourist are novelty, near immunity against legal action, and most importantly facelessness or anonymity.
When the tourist is in a foreign land, the anonymity relieves him from several social and legal constraints, which he otherwise faces in his own country. As a Japanese proverb goes, “the traveler knows no shame” or as an European one states, “the farther I go from home the less moral I become”. He thus ventures in sexual experiments and attempts to gratify all his socially unacceptable sexual desires and fantasies.
Sex tourism consolidates racial discrimination and exploits other races, which the tourists think, are inferior. A variety of doctrines enable the tourists to justify the exploitation by saying that sex with children is acceptable in the culture of the society they are visiting.
In general due to globalization and advancement in air travel technology overall tourism has increased. The tourism and entertainment industry grow hand in hand. With growth in tourism sex tourism has also increased and has increased the demand for victims in the sex trade which in turn has fuelled human trafficking.
No! As explained above Human Trafficking refers to acquiring human beings by criminal means and inducting them into a variety of exploitative purposes or destination crimes. Thus they are not the same as the destination crimes. More clearly human trafficking is not the same as slavery or bonded labour while they are distinct they are also very close to one another. Sex trafficking is different than the sex trade. The former is carried out for the latter.
No! We often here some people stating that prostitution per se is not illegal in India OR prostitution per se is legal in India.
Both these statements are wrong.
To understand the issue correctly one has to first understand what is meant by the term prostitution. It is significant that the Indian law Immoral Traffic (Prevention Act -1956 when revised in 1986 adopted a very progressive and clear definition of prostitution. Sec 2(f) of ITP Act states;
“Sec 2 (f) “Prostitution” means the sexual exploitation or abuse of persons for commercial purposes and the expression “prostitute” shall be construed accordingly”
The law defines prostitution as commercial sexual exploitation and penalizes many actors who cause and facilitate. it No law in India gives legal permission to prostitution.
The term sex trade is yet another term that is used to prostitution or commercial sexual exploitation.
The third conventional usage of the term prostitution is – prostitution as the act of a female selling her sex to a man. This notion underwent some change over time and came to be used as the act of a person (female, male or transgender) selling its sex to another person. If the buyer is of the same sex as that of the seller then the law considers it as an offence and provides for a punishment to both. The act continues to remain a punishable offence even in absence of a commercial consideration.
When prostitution is defined as commercial sexual exploitation as mentioned above (Sec 2(f) of ITP Act) the law provides to penalize the following acts;
- Procuring someone for prostitution
- Detaining (variously) someone for prostitution
- Running or managing a brothel
- Giving one’s premise for running a brothel
- Giving one’s premise for selling of sex by a woman all by herself and alone
- Selling of sex by more than one woman
- Soliciting for prostitution in a radius of 200 meters from a hospital, an educational institution, a place of worship and such other places prescribed by the government from time to time.
- Soliciting in public place by the woman whose bodily sex is on sale
- Soliciting in public place by a pimp
- Seducing someone to get into prostitution
- Living on the earning of someone’s prostitution (the woman’s child below the age of 18 years is exempted)
When we put a variety of laws together and find the quintessential position fo law on prostitution one can safely states that in India
If an adult (not below 18 years of age/offence under IPC POCSO and ITPA) person (not just a woman) alone (not two or more persons together/that will make the place a brothel and punish it under ITP Act) sells her/his bodily sex (not pornographic material/offence under IPC, ITA, POCSO) to a person in her private (neither in public places nor in prohibited places/offence under ITP Act and respective State Police Acts) to a hetero sexual partner (not same sex buyer/ offence under Sec 377 IPC) is not a punishable offence in India.
Unlike in Bangladesh where a woman above 18 years of age can submit her request before a court of law and get a license to sell her bodily sex to a man India does not have any such provisions for explicit and positive recognition for selling one’s bodily sex.
Yes! Just as one has the freedom or right to do a certain act (here selling one’s bodily sex) that person also has a responsibility not to cause annoyance to the public. Just as the person has certain rights the other people and the society in general too has certain rights and there are areas of conflict of rights. One’s rights to sell one’s bodily sex is limited by the related rights of the other persons in the society.
Section 7 (a) ensures that a member of public, people in serious situation, and children and youth of impressionable age are not involuntarily exposed to the acts of prostitution, indecent exposure, or soliciting.
ITPA Sec. 20 ensures the rights of the residents to not get exposed to or annoyed by the activities related with prostitution including the frequent thoroughfare of strangers who visit the premise with an intention to sell and buy sex and empowers the magistrate to have the woman evicted from the place.
Sec 8 (a) states,
Whoever, in any public place or within sight of, and in such manner as to be seen or heard from, any public place, whether from within any building or house or not-
(a) by words, gestures, willful exposure of his person (whether by sitting by a window or on the balcony of a building or house or in any other way), or otherwise tempts or endeavors to tempt, or attracts endeavors or to attract the attention of, any person for the purpose of prostitution; …..
shall be punishable on first conviction with imprisonment for a term which may extend to six months or with fine which may extend to five hundred rupees, or with both
Although these are offences the law does not aim to give harsh punishment to the person mostly woman for the violation of the above provisions. Sec 10-A states,
10A. Detention in a corrective institution
(a) a female offender is found guilty of an offence under section 7 or section 8, 39[***]; and.
(b) the character, state of health and mental condition of the offender and the other circumstances of the case are such that it is expedient that she should be subject to detention for such term and such instruction and discipline as are conducive to her correction, it shall be lawful for the court to pass, ii lieu of a sentence of imprisonment, an order for detention in a corrective institution for such term, not being less than two years and not being more than five years, as the court thinks fit :
All this goes to indicate that the law;
- does not aim to penalize the woman (a female offender) whose bodily sex is sold
- does not aim to penalize the woman for violation of Sec 7 and Sec 8
- does aims at penalizing the organized sex trade and sex traders
There are various legal or policy approaches to the sex trade, They are as follows;
- Abolitionist approach: The abolitionists look at prostitution as a patriarchal misogynist practice which is full of violence against women and consider it as anti family and immoral phenomenon. It analyses prostitutes as the victims of trafficking and recommend that the trade must be abolished completely. The abolitionist had significant presence in Europe and USA.
- Regulationist approach: This approach presumes that prostitution cannot be abolished. If attempted to ban it may cause serious problems in the society. In doing so it implicitly presumes that prostitution has a certain utility and hence must be regulated with rules and inspection. Among the regulations the approach suggests periodic medical testing to keep the sexually transmitted infections under control. It also suggests close monitoring. With a view to avoid any clashes with groups of any incompatible view it also suggests zoning whereby the trade is kepr under geographic limitation. This in turn requires and thus the policy recommends licensing, registration and data maintenance.
- Actively Facilitating the sex trade (goes hand in hand with regulationist approach): The political regimes that were following the regulationist approach but who were also handling large scale migrant population like sailors and soldiers these being important pillars of their expansionist colonization programme passed laws and under the force of which set up redlight areas and recruited (practically trafficked) women in the port cities and inland cantonments in their colonies. e.g. Mumbai, Kolkata
- Socially Legitimizing the sex trade: Most established and historical civilizations had some or the other form of institutionalized prostitution under which the state, the civil society, communities and families caem to accept and legitimize a form of prostitution as legitimate an required
- Legalization approach: This is mostly misconceived and misinterpreted policy option which is being promoted by the sex traders and some pharmaceuticals who see big business in the sell of condoms, testing kits and anti retroviral drugs all in the field of HIV and AIDS. This policy incorporates other policy options like registration and licensing. It becomes instantly appealing to an uncritical reader as the word legalization or legal has a magical spell and makes one believe that something legal and legitimate is about to happen which si never the case. More about legalization in another note.
- Decriminalization of selling: Originally adopted by India in 1956 and then further strengthened in the year 1986 through an amendment of the ITP Act the Indian law does not punish a woman selling her bodily sex by following the framework of limitations. In the 1990s Sweden adopted a policy of not penalizing the woman who sells her sex and actively punishing the buyer who buys sex. This approach became very famous all over the worlds as the Nordic model and after Sweden many other Nordic and other countries adopted it.
- Decriminalization of buying: This approach holds that a sex buyer is not to be punished. All such provisions in the existing law in any that penalize the buyer of sex are repealed.
- Decriminalization of the sex trade in general: This is a rising trend and its success is directly proportionate to the growing power of the sex traders. Under this approach the state ensures that selling sex, buying sex, running of brothels, pimping on someone’s prostitution, soliciting in public, etc are not treated as punishable offences.
- Tolerationist approach: Public administrators and policy makers when haunted by certain myths and worried about the imaginary unmanageable consequences of abolishing the sex trade openly for legitimacy sake declare an abolitionist policy but intentionally avoid taking any action against it and tolerate it to operate underground. Posy independence India has been adopting the tolerationist policy. In effect there are large red light areas in every city but the state does not disturb them. Post independence India has been following this approach.
The spirit and the text of a progressive social legislation in itself is not sufficient to bring about the desired change. For its implementation it grossly depends upon the political and administrative will. The people and forces entrusted with the responsibility of implementing a law belong to the same inegalitarian and unjust society which creates, sustains and thrives on social victimization and trafficking for exploitation. It requires growing plurality in the society as against concentration of power and wealth, commitment to equality and human rights, strategic interventions and tireless efforts to bring about the desired change. In India the laws against labour class exploitation of children, slavery, evil social traditions of sexually exploiting the girls of certain marginalized communities and the systems of temple based commercial sexual exploitation like the Devadasi system are very old but mostly not implemented.
These are wild unsubstantiated and illogical figures which keep snowballing. Quoting figures even when they are completely unsubstantiated is a rampant practice among scholars, policy makers, activists, and mass media representatives because there is a blind belief that once jacked up with figures the claims get broader acceptance. The prevalent practice of uncritically accepting any kind of statistics is mostly responsible for that. One must note that no one has taken any scientific or logical exercise to arrive at such global continental or regional figures. Undertaking such exercise is a herculean task in every respect. The data gathering and maintenance systems of different countries are greatly different. Many countries especially poor countries do not have such data management systems. The concepts, definitions and term needed in such exercise have not been properly articulated let alone operationalized. The laws of different countries being different an action that is illegal in one country is lawful in another country. The information available at the legitimate official data keeping systems like the NCRB in India suffers from all these ailments. When it comes to the scanty but authentic statistics it is only a collection of the police station records of registered complaints of crime. There is no logical way to extrapolate the real incidence on the basis of the registered incidence. The misplaced popularity of statistics and the misplaced way of believing in a phenomenon only if it is supported by figures appears to be a major and rampant weakness of this field. That should not come in the way of anyone who makes such claim on the basis of one’s field level or firsthand exposure and observations stating that the phenomenon is serious and large.