(REDRAFTED)
INTEGRATED PLAN OF ACTION
TO PREVENT AND COMBAT
HUMAN TRAFFICKING
WITH
SPECIAL FOCUS ON
CHILDREN AND WOMEN
1.
Defining Trafficking
2.
Existent Framework
3.
Role of Ministry of Women and
Child Development
4.
Role of National Human Rights
Commission
5.
Role of Ministry of Home Affairs
6.
Role of National Commission for
Women
II. INTEGRATED PLAN OF ACTION TO PREVENT AND COMBAT HUMAN
TRAFFICKING WITH SPECIAL FOCUS ON CHILDREN AND WOMEN
1.
Ensuring Human Rights Perspective for the Victims of
Trafficking
2.
Preventing Trafficking
3.
Emerging Areas of Concern in Trafficking – Their Patterns
and Trends
4.
Identification of Traffickers and Trafficked Victims
5.
Special Measures for Identification and Protection of
Trafficked Child Victims.
6.
Rescue of Trafficked Victims Especially in Brothel-Based and
Street-Based Prostitution with Special Focus on Child Victims
7.
Rehabilitation, Reintegration and Repatriation of Trafficked
Victims with Special Focus on Child Victims
8.
Cross-Border Trafficking: National and Regional Cooperation
and Coordination
9.
Legal Framework and Law Enforcement
10.
Witness Protection and Support to Victims
11.
Training, Sensitization, Education and Awareness
12.
Methodology for Translating the Action Points into Action
I. Introduction
Trafficking in human beings, more so
in women and children, is one of the fastest growing forms of criminal
activity, next only to drugs and weapons trade, generating unaccountable
profits annually. The reasons for the increase in this global phenomenon are
multiple and complex, affecting rich and poor countries alike.
The Protocol to Prevent, Suppress
and Punish Trafficking in Persons, Especially Women and Children, supplementing
the United Nations Convention against Transnational Organised Crime
(Trafficking Protocol) that was adopted in the year 2000 and came into force in
December 2003, has perhaps brought the much-needed and widespread consensus on
a working definition of trafficking at the global level. Article 3 of the Protocol defines trafficking
as:
(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 subparagraph (a) of this article;
(d) “Child” shall mean any person under eighteen years of age.
The above definition clearly spells
out that trafficking covers not only the transportation of a person from one place
to another, but also their recruitment and receipt so that anyone involved in
the movement of another person for their exploitation is part of the
trafficking process. It further
articulates that trafficking is not limited to sexual exploitation only for it
could occur also for forced labour and other slavery like practices. This means that people who migrate for work
in agriculture, construction or domestic work, but are deceived or coerced into
working in conditions they do not agree to, be also defined as trafficked
people. The Government of India signed the Trafficking Protocol on
2. Existent Framework
The Constitution of India, the
fundamental law of the land, forbids trafficking in persons. Article
23 of the Constitution specifically prohibits “traffic in human beings and
begar and other similar forms of forced labour”. Article 24 further prohibits
employment of children below 14 years of age in factories, mines or other
hazardous employment. Other fundamental
rights enshrined in the Constitution relevant to trafficking are Article 14 relating to equality before
law, Article 15 that deals with
prohibition of discrimination on grounds of religion, race, caste, sex or place
of birth, Article 21 pertaining to
protection of life and personal liberty and Article 22 concerning protection from arrest and detention except
under certain conditions.
The Directive Principles of State
Policy articulated in the Constitution are also significant, particularly Article 39 which categorically states
that men and women should have the right to an adequate means of livelihood and
equal pay for equal work; that men, women and children should not be forced by
economic necessity to enter unsuitable avocations; and that children and youth
should be protected against exploitation.
Further, Article 39A directs that the legal system should ensure
that opportunities for securing justice are not denied to any citizen because
of economic or other disabilities. In
addition to this, Article 43 states that all workers should have a
living wage and there should be appropriate conditions of work so as to ensure
a decent standard of life.
The commitment to address the
problem of trafficking in human beings is also reflected in various laws/legislations
and policy documents of the Government of India. The Indian
Penal Code, 1860 contains more than 20 provisions that are relevant to
trafficking and impose criminal penalties for offences like kidnapping,
abduction, buying or selling a person for slavery/labour, buying or selling a
minor for prostitution, importing/procuring a minor girl, rape, etc.
The Immoral Traffic (Prevention) Act, 1956 (ITPA), initially enacted as
the ‘Suppression of Immoral Traffic in Women and Girls Act, 1956, is the main legislative
tool for preventing and combating trafficking in human beings in India. However, till date, its prime objective has
been to inhibit/abolish traffic in women and girls for the purpose of
prostitution as an organized means of living.
The Act criminalizes the procurers, traffickers and profiteers of the
trade but in no way does it define ‘trafficking’ per se in human
beings. The other relevant Acts which
address the issue of trafficking in India are the Karnataka Devdasi
(Prohibition of Dedication) Act, 1982; Child Labour (Prohibition and
Regulation) Act, 1986; Andhra Pradesh Devdasi (Prohibiting Dedication)
Act, 1989; Information Technology Act, 2000; the Goa Children’s Act, 2003; and
the Juvenile Justice (Care and Protection of Children) Amendment Act,
2006. Beside these, there are also
certain other collateral laws having relevance to trafficking. These are the Indian Evidence Act, 1872;
Child Marriage Restraint Act, 1929; Young Persons (Harmful Publications) Act,
1956; Probation of Offenders Act, 1958; Criminal Procedure Code, 1973; Bonded
Labour System (Abolition) Act, 1976; Indecent Representation of Women
(Prohibition) Act, 1986; and the Transplantation of Human Organs Act, 1994.
The judiciary too has played an
active role in preventing and combating trafficking by pronouncing some
landmark judgments in “Public Interest Litigations”. Prominent among them are the 1990 case of Vishal
Jeet v. Union of India and the 1997 case of Gaurav Jain v. Union of
India. In the former case, on the
directions given by the Supreme Court, the Government constituted a Central
Advisory Committee on Child Prostitution in 1994. Subsequently, State Advisory Committees were
also setup by State Governments. The
outcome of the latter case was constitution of a Committee on Prostitution,
Child Prostitutes and Children of Prostitutes to look into the problems of
commercial sexual exploitation and trafficking of women and children and of
children of trafficked victims so as to evolve suitable schemes in consonance with
the directions given by the
3. Role of Ministry of Women and Child Development
Based on the Report of the Central
Advisory Committee on Child Prostitution, the recommendations of the National
Commission for Women and the directions of the Supreme Court of India as well
as the experiences of various non-governmental organizations working in this
area, the Ministry of Women and Child Development, the Nodal Ministry in the
Government of India dealing with issues concerning women and children drew up a
National Plan of Action to Combat Trafficking and Commercial Sexual
Exploitation of Women and Children in the year 1998. A Central Advisory Committee under the
chairpersonship of Secretary, Ministry of Women and Child Development has also
been constituted with members from Central Ministries like the Ministry of Home
Affairs, Ministry of External Affairs, Ministry of Tourism, Ministry of Health,
Ministry of Social Justice and Empowerment, Ministry of Information Technology
and Ministry of Law and Justice to combat trafficking in women and children and
commercial sexual exploitation as well as rehabilitate victims of trafficking
and Commercial Sexual Exploitation and improve legal and law enforcement
systems. This Committee meets once in
every three months wherein senior representatives of State Governments where
the problem of trafficking is found to be rampant are also invited. Other invitees to the meetings of the Central
Advisory Committee are representatives of prominent NGOs and international organizations
working in the area of trafficking, National Commission for Women, National
Human Rights Commission, Central Social Welfare Board, National Crime Records
Bureau, Border Security Force, Intelligence Bureau, Central Bureau of
Investigation, Sashastra Suraksha Bal, etc.
The Ministry of Women and Child Development has requested all
Secretaries of the Department of Women and Child Development in the States and
Union Territories to hold regular meetings of State Advisory Committee
constituted under the 1998 National Plan of Action to Combat Trafficking and
Commercial Sexual Exploitation of Women and Children and monitor initiatives
being undertaken by them with regard to prevention, rescue, rehabilitation,
reintegration and repatriation of victims of trafficking.
The Ministry of Women and Child
Development has also undertaken a study in collaboration with UNICEF on Rescue
and Rehabilitation of Child Victims Trafficked for Commercial Sexual
Exploitation. The Report of this study
was released to the public in 2005. The Ministry of Women and Child
Development, in 2005, also formulated a Protocol for Pre-Rescue, Rescue and
Post-Rescue Operations of Child Victims of Trafficking for Commercial Sexual
Exploitation. This Protocol contains
guidelines for State Governments and a strategy for Rescue Team Members for
pre-rescue, rescue and post-rescue operations concerning children who are
victims of trafficking and were sexually being exploited for commercial
reasons. The Ministry of Women and Child
Development in collaboration with UNICEF and various other organizations has
developed three manuals – the “Manual for the Judicial Workers on Combating
Trafficking of Women and Children for Commercial Sexual Exploitation”, “Manual
for Medical Officers for Dealing with Child Victims of Trafficking and
Commercial Sexual Exploitation”, and “Manual for Social Workers Dealing with
Child Victims of Trafficking and Commercial Sexual Exploitation”. The Manual for Judicial Workers has been
developed in collaboration with the National Human Rights Commission.
4. Role of National Human Rights Commission
In view
of the existing trafficking scenario and at the request of the UN High
Commissioner for Human Rights as well as on the recommendations of the Asia
Pacific Forum of National Human Rights Institutions, the National Human Rights
Commission nominated one of its Members to serve as a Focal Point on Human
Rights of Women, including Trafficking in 2001. Among the activities initiated
by the Focal Point was an Action Research on Trafficking in Women and Children
in
Before commencing the Action Research, an Information Kit on Preventing and Combating Trafficking in Women and Children was also published by the Focal Point. The main aim of the Information Kit was to inform the society about the various aspects of Trafficking – its forms, the estimates, the causes, the consequences, the modus operandi and the role of the Commission in preventing and combating trafficking. Prior to the establishment of the Focal Point, the Commission with the help of UNICEF and other organizations had carried out a campaign of Public Awareness on the problem of Child Prostitution and Sexual Abuse of Children in 1998.
Pained with the plight of children who were victims of trafficking, the
Commission and the Prasar Bharati, with support from UNICEF, collectively
prepared a Guidebook for the Media on Sexual Violence Against
Children. The main objective of the
guidebook is to encourage media professionals to address the issue of sexual
violence against children in a consistent, sensitive and effective manner,
consonant with the rights and best interests of children. Further, to prevent cross-border trafficking,
the National Human Rights Commission requested the Directors General of Police
of Uttar Pradesh,
To spread awareness on prevention of sex tourism and
trafficking, the Commission in collaboration with the UNIFEM and an NGO
organized a one-day Sensitization Programme on Prevention of Sex Tourism and
Trafficking in the year 2003. The main
objective of the programme was to sensitize senior representatives of the hotel
and tourism industry on various issues relating to sex tourism and
trafficking. A National Workshop to
Review the Implementation of Laws and Policies Related to Trafficking was also
organized in 2004 in collaboration with PRAYAS, A Field Action Project of the
Tata Institute of Social Sciences, Mumbai to work towards an effective rescue
and post-rescue strategy.
5. Role of Ministry of Home Affairs
The Ministry of Home Affairs is also
concerned with the problem of trafficking in human beings. It organized a two-day National Seminar on
Trafficking in Human Beings in collaboration with the National Human Rights
Commission and the United Nations Office on Drugs and Crime (UNODC) at the
India Habitat Centre,
6. Role
of National Commission for Women
The National Commission for Women is
also dealing with the problem of trafficking in women and children. In late 90s, it undertook two studies
entitled ‘The Lost Childhood’ and ‘Velvet Blouse – Sexual Exploitation of
Children’. In 2001, it undertook another
study entitled ‘Trafficking – A Socio-Legal Study’. Later in 2004, a study on ‘Coastal Sex
Tourism’ was carried out by it. Along
with these research studies, it has organized various seminars, training
programmes and conferences on the subject of trafficking. Based on the above, it suggested amendments
to ITPA in order to have a comprehensive law on trafficking.
The Ministry of Women and Child Development, the Ministry of Home Affairs and the National Human Rights Commission have requested all Chief Secretaries and Directors General of Police to sensitize the subordinate functionaries at the cutting edge on trafficking as well as other issues related to trafficking so that perpetrators of trafficking and its allied activities are severely dealt under the relevant provisions of law. The Ministry of Women and Child Development, the Ministry of Home Affairs, the National Human Rights Commission and the National Commission for Women on their own and in collaboration with the civil society are sensitizing the judicial officers, police officers, government officers and various other stakeholders on issues related to trafficking in human beings for various purposes.
II. Integrated Plan of Action to Prevent
and Combat Human Trafficking with Special Focus on Children and Women
The introductory chapter gives a
broad overview about the initiatives and activities undertaken by various
stakeholders to prevent and combat trafficking in human beings. Most of these initiatives and activities have
come out with their own recommendations and Plans of Action. The result being that we all are working in
isolation rather collectively on the same issue. In order that these recommendations/Plans of
Action are properly acted upon, the Ministry of Women and Child Development,
Ministry of Home Affairs, National Human Rights Commission and National
Commission for Women have decided to work in unison and draw up an Integrated
Plan of Action to Prevent and Combat Human Trafficking with Special Focus on
Children and Women. This, we feel, would guide and facilitate uniform
action on the part of all concerned so that trafficking is eliminated from its roots.
The
Integrated Plan of Action outlined below consists of action points grouped
under:
·
Ensuring Human Rights Perspective for the Victims of
Trafficking
·
Preventing Trafficking
·
Emerging Areas of Concern in Trafficking – Their Patterns
and Trends
·
Identification of Traffickers and Trafficked Victims
·
Special Measures for Identification and Protection of
Trafficked Child Victims
·
Rescue of Trafficked Victims Especially in Brothel-Based and
Street-Based Prostitution with Special Focus on Child Victims
·
Rehabilitation, Reintegration and Repatriation of Trafficked
Victims with Special Focus on Child Victims
·
Cross-Border Trafficking: National and Regional Cooperation
and Coordination
·
Legal Framework and Law Enforcement
·
Witness Protection and Support to Victims
·
Training, Sensitization, Education and Awareness
·
Methodology for Translating the Action Points into Action
The ultimate
objective of the Integrated Plan of Action is to mainstream and reintegrate all
victims of trafficking in society.
1. Ensuring Human Rights Perspective
for the Victims of Trafficking
Violations of human rights are both a cause and a consequence of human trafficking. Accordingly, it is essential to place the protection of human rights at the center of any measures taken to prevent and end trafficking. Anti-trafficking measures should not adversely affect the human rights and dignity of persons, in particular, the rights of those who have been trafficked. The overall machinery deployed by the Central Government/State Governments/Union Territories should consider:
1. Taking steps to ensure that measures adopted for the purpose of preventing and combating human trafficking do not have an adverse impact on the rights and dignity of persons, including those who have been trafficked.
2.
Developing standard minimum guidelines for all officials and
service providers with regard to pre-rescue, rescue and post-rescue operations
including rehabilitation, reintegration and repatriation of trafficked victims.
These guidelines should be gender-responsive and should also provide further
referral to other service providers in order to prevent revictimization. These
could be prepared in the form of information kits/booklets/handbooks/do’s and
don’ts or be made part of the rules issued under the concerned law and should
specify the accountability of the agencies concerned in providing services.
This would enable all officials and service providers -- judicial officers, prosecutors,
lawyers, law enforcement officials, medical and psycho-social professionals,
functionaries manning homes/agencies of different kinds and others, to
discharge their functions and duties effectively.
3.
Taking particular care to ensure that the issue of
gender-based discrimination is addressed systematically when anti-trafficking
measures are proposed with a view to ensure that such measures are not applied
in a discriminatory manner.
4.
Ensuring that trafficked children, including girl children,
are dealt with separately from adult trafficked persons in terms of laws,
policies, programmes and interventions. The best interest of the child should
be of prime consideration in all actions concerning trafficked children. Steps
to be initiated to ensure that children who are victim of trafficking are not
subjected to criminal procedures or sanctions for offences related to their
situation as trafficked persons.
Preventing trafficking should take into
account both demand and supply as a root cause. Central Government/State
Governments/Union Territories should also take into account the factors that
increase vulnerability to trafficking, including inequality, poverty and all
forms of discrimination and prejudice. Effective prevention strategies should
be based on existing experience and accurate information.
1.
Analysing
the factors that generate demand and supply for exploitative commercial sexual
services and exploitative labour and taking strong legislative, policy and
other measures to address these issues.
2. Empowering the vulnerable sections
living in remote corners of country by
extending to them various welfare, development and anti-poverty schemes of the
Government of India, such as, Swadhar, Swayamsidha, Swa-Shakti, Swawlamban,
Balika Samridhi Yojana, Support to Training and Employment Programme for Women
(STEP), Kishori Shakti Yojana, etc. This would provide scope for ample economic
opportunities for the women and other traditionally disadvantaged groups in
their native place itself so as to reduce their vulnerability to trafficking.
3. Improving children’s access to schools
and increasing the level of school attendance, especially of those affected or
dependants, including the girl children, especially in remote and backward
parts of the country. Efforts should also be made to incorporate sex-education
and gender sensitive concerns in the school curriculum, both at the primary and
secondary levels.
4. Generating
awareness and spreading legal literacy on economic rights, particularly for
women and adolescent girls should be taken up.
Presently, there seems to be insufficient knowledge and information
among the people to make informed decisions that affect their lives. This would
not only enable them to know about their rights but also inform them about the
risks of illegal migration (e.g. exploitation, debt bondage and health and
security issues, including exposure to HIV/AIDS) as well as avenues available
for legal, non-exploitative migration.
5.
Developing information campaigns for the general public
aimed at promoting awareness about the dangers associated with trafficking.
Such campaigns should be informed by an understanding of the complexities
surrounding trafficking and of the reasons as to why individuals may make
potentially dangerous migration decisions.
6.
Reviewing and modifying policies that may compel people to
resort to irregular and vulnerable labour migration. This process should include examining the
effect especially with regard to unskilled labour and woman.
7.
Examining ways of increasing opportunities for legal,
gainful and non-exploitative labour migration.
The promotion of labour migration on the whole should be dependent on
the existence of regulatory and supervisory mechanisms to protect the rights of
migrant workers.
8. Giving
focused attention to the adolescents, who are both potential victims and
clients. It would be useful if
appropriate information and value clarification is given to them on issues
related to ‘sexuality’ and ‘reproductive health’. This exercise would be beneficial in view of
the growing evidence of increased pre-marital sexual activity among adolescents
and the looming threat of HIV/AIDS within this group.
9. Strengthening
the capacity of law enforcement agencies to arrest and prosecute those involved
in trafficking. This would include
ensuring that law enforcement agencies comply with their legal obligations.
10. Devising
necessary mechanisms for concerted coordination between the judiciary, police,
government institutions and non-governmental organizations/civil society groups
with regard to prevention and combating strategies. This kind of a government-public network
would involve and make the non-governmental organizations/community responsible
to act as watchdogs and informants on traffickers and exploiters.
11. Adopting
measures to reduce vulnerability by ensuring that appropriate legal
documentation for birth, citizenship and marriage is provided and made
available to all persons.
12. Setting up of
a national database/web portal under the aegis of National Crime Records
Bureau. The main purpose of this kind of
a mechanism is to create a help desk in providing information on missing
persons including women and children, alert notice on suspected traffickers,
anti-trafficking networks, do’s and don’ts to be followed while dealing with
victims of trafficking, etc.
13. Addressing
culturally sanctioned practices like the system of devadasis, jogins,
bhavins, etc. which provide a pretext for trafficking of women and children
for sexual exploitation.
14. Giving
adequate publicity, through print and electronic media including ‘childlines’
and women ‘helplines’ across the country about the problem of trafficking and
its ramifications.
1. Evolving a comprehensive integrated approach for prevention and protection of trafficked victims, especially children of both sexes who are pushed into non-brothel based prostitution. Simultaneously, there is also need to evolve a strategy to prosecute all those who indulge in exploitation of these kinds.
2. Strengthening/Amending existing laws on trafficking related to non-brothel based prostitution.
3. Spreading awareness about non-brothel based prostitution by organizing campaigns, training/sensitization programmes for staff and other functionaries in the hotel and tourism sector as well as children in schools, adolescents and youth groups.
4. Giving special attention to vulnerable areas like massage parlours, escort services, party hostesses, attendants, companions, etc. so as to prevent linkage between trafficking and non-brothel based prostitution.
5. Developing and distributing brochures and flyers in international/domestic flights for addressing the international/domestic tourists on the legal repercussions of non-brothel based prostitution. Besides, in-flight videos/films could also be prepared for showing on national and international flights.
6. Developing and distributing different kinds of awareness material like posters, hoardings, etc. on trafficking linked to non-brothel based prostitution.
Trafficking
means much more than the organized movement of persons for profit. The critical additional factor that
distinguishes trafficking from other kinds of clandestine movement of persons
is the presence of force, coercion and/or deception throughout or at some stage
in the process – such deception, force or coercion being used for the purpose
of exploitation. It is therefore very
essential to keep a watch on all kinds of movements. Besides, the Central Governments, State
Governments and Union Territory Administrations should not only identify and
target the traffickers only but also those who are involved in controlling and
exploiting trafficked victims. For
example, those who are recruiters, transporters, those who transfer and/or
maintain trafficked persons in exploitative situations, those involved in
related crimes and those who profit either directly or indirectly from
trafficking, its component acts and related offences.
1. Developing
guidelines and procedures for relevant State authorities and officials such as
police, border security personnel, immigration officials and others involved in
the detection, detention, reception and processing of irregular migrants, to
permit the rapid and accurate identification of traffickers and trafficked
victims, including children.
2. Providing
appropriate training to relevant State authorities and officials in the
identification of traffickers and trafficked victims, including children and
correct application of the guidelines and procedures referred to above.
3. Ensuring
cooperation between relevant authorities, officials and non-governmental
organizations to facilitate the identification of traffickers and trafficked
victims and provision of assistance and support to trafficked victims. The organization and implementation of such cooperation
should be formalized in order to maximize its effectiveness.
4. Identifying
appropriate points of intervention to ensure that migrants and potential
migrants are warned about possible dangers and consequences of trafficking and
receive information that enables them to seek assistance if required.
5. Ensuring
that all traffickers are arrested, prosecuted and punished with stringent
penalties for their deeds. One way could
be of confiscating their assets and proceeds of trafficking which could be used
for the benefit of victims of trafficking.
In no way, the trafficked victims should be prosecuted for the
activities they are involved in as a result of their situation. It should be ensured that protection
of trafficked victims as well as the confiscation of assets and proceeds of the
trafficker for the benefit of trafficked victims are built into the
anti-trafficking legislation itself. In
fact, consideration should be given to the establishment of a Compensation Fund
for victims of trafficking and the use of confiscated assets should finance
such a fund. The protection offered to
the victims in no way should be made conditional upon the willingness of the
trafficked victim to cooperate in the legal proceedings.
5. Special Measures for Identification and
Protection of Trafficked Child Victims
The physical, psychological and psychosocial harm suffered by trafficked children and their increased vulnerability to exploitation require that they be dealt with separately from adult trafficked persons in terms of laws, policies, programmes and interventions. The best interests of the child must be a primary consideration in all actions concerning trafficked children, whether undertaken by courts of law, government authorities, legislative bodies or non-governmental organizations. Children who are victims of trafficking should be provided with appropriate assistance and protection and full account should be taken of their special rights and needs. The Central Government/State Governments/Union Territory Administrations/inter-governmental and non-governmental organizations, should consider, in addition to the measures outlined under serial no. IV:
1. Ensuring
that definitions of trafficking in children, in both law and policy, reflect
their need for special safeguards and care, including appropriate legal
protection. In particular, and in
accordance with the 2000 Palermo Protocol, evidence of deception, force,
coercion, etc. should not form part of the definition of trafficking where the
person involved is a child. The mere
presence of a child with a trafficker of any kind should connote that the child
is trafficked or is being trafficked.
2. Ensuring
that procedures are in place for the rapid identification of child victims of
trafficking.
3. Ensuring
that children who are victims of trafficking are not subjected to criminal
procedures or sanctions for offences related to their situation as trafficked
persons.
4. In cases
where children are not accompanied by relatives or guardians, steps should be
taken to identify and locate family members.
Measures should also be taken in consultation with the child to
facilitate the reunion of trafficked children with their families where this is
deemed to be in their best interest.
5. In
situations where the safe return of the child to his or her family is not
possible, or where such return would not be in the child’s best interests,
establishing adequate care arrangements that respect the rights and dignity of
the trafficked child.
6. In both the
situations referred to at serial no. 4 and 5 above, ensuring that a child who
is capable of forming his or her own views enjoys the right to express those
views freely in all matters affective him or her, in particular, concerning
decisions about his or her possible return to the family, the views of the
child be given due weightage in accordance with his or her age and maturity.
7. Adopting
specialized policies and programmes to protect and support children who have
been victims of trafficking. Children
should be provided with appropriate physical, psychosocial, legal, educational,
housing and healthcare assistance.
8. Adopting
measures necessary to protect the rights and interests of trafficked children
at all stages of criminal proceedings against alleged offenders and during
procedures for obtaining compensation.
9. Protecting, as appropriate, the privacy and identity of
child victims and taking measures to avoid the dissemination of information
that could lead to their identification.
10. Taking
measures to ensure adequate and appropriate training, in particular, legal and
psychological training, for persons working with child victims of trafficking.
6. Rescue of Trafficked Victims,
Especially in Brothel-Based and Street-Based Prostitution with Special Focus on
Child Victims
The process of
trafficking cannot be broken without giving proper attention to the rights and
needs of those who have been trafficked.
Appropriate measures need to be specifically devised for trafficked
victims, especially in brothel-based and street-based prostitution, including
children who have been trapped in this without discrimination. The Central Government/State
Governments/Union Territory Administrations/inter-governmental/non-governmental
organizations should consider:
1. Taking
effective measures for planning and devising a rescue strategy specifying
victim-friendly provisions and structures for trafficked victims who have been
forced into brothel-based and street-based prostitution.
2. Creating a
specialized cell for rescuing them at the Centre/State/Block/District/Village
level. This kind of paraphernalia would
also facilitate in coordinating with other relevant departments and
non-governmental organizations (intra and inter) for rescuing trafficked
victims caught in brothel-based and street-based prostitution including
children who have been trapped.
3. Creating a
confidential database on traffickers including probable traffickers, brothel
owners, madams, gharwalis, etc. at all levels.
4. Cultivating
a network of informants who will provide specific information about trafficked
women victims including child victims below 18 years who want to be rescued
from brothels.
5. Ensuring that rescue team should consist of both men and
women police officers and representatives of non-governmental
organizations/local inhabitants. Each
member of the rescue team should be told about his/her role in the rescue
operation and how the same is to be executed.
They should also be told to maintain confidentiality and secrecy of the
entire rescue operation.
7. Taking due
care by all concerned to ensure that trafficked women, particularly children,
are not unnecessarily harassed or intimidated during the course of rescue
operations. Adoption of humane and
rights-based approach would go a long way in building the faith of the victims
in the criminal justice system. This
would also facilitate the overall rehabilitation, reintegration of the victims.
8. Ensuring, in
partnership with non-governmental organizations, that trafficked victims,
including children, are provided access to legal, medical and counselling
services. It should also be ensured that
they are treated with dignity and not humiliated by the police, medical
personnel or the court.
9. Ensuring
that any victim, including a child, who is rescued, is examined by a Registered
Medical Practitioner for the purpose of age and for the detection of
injuries/diseases. Trafficked victims
should not be subjected to mandatory testing for diseases, including HIV/AIDS.
10. Ensuring
that, in cases where the victim rescued is not a child, she should not be prima
facie treated as a criminal accused of soliciting clients. Steps should be taken to ensure that correct
provisions of law are applied and that the FIR is not stereotyped.
11. All efforts
should be made to ensure anonymity and privacy of the victims during and after
rescue.
7. Rehabilitation, Reintegration and
Repatriation of Trafficked Victims with Special Focus on Child Victims
The
rehabilitation, reintegration and repatriation of victims of trafficking being
a long process must be planned, taking into account the specific short and
long-term needs of individual victims.
Efforts must be non-punitive and aimed at protecting the rights of the
victims. All stakeholders should
therefore consider:
1.
Taking into account the specific short and long-term needs
of each individual victim based on their age, education, skills, etc., the
rehabilitation, reintegration and repatriation package for victims of
trafficking should be worked out.
2. Keeping in
view the paucity of government run institutions as well as the deteriorating
conditions of these institutions, there is need to identify names of fit
persons and fit institutions for providing safe custody to victims of
trafficking. This list should be made
available to the police, courts, non-governmental organizations and civil
society at large for information.
3. Providing
access to legal, medical and counselling services to all trafficked victims in
order to restore their self-confidence and self-esteem. Special provision should be provided to those
who have contracted HIV/AIDS.
4. Enabling
victims of trafficking to access both formal and non-formal education
structures. Formal education should be
made available to those victims who are still within the school going age, while
non-formal education should be made accessible to adults.
5. Providing
gender sensitive market driven vocational training in partnership with
non-governmental organizations to all rescued victims who are not interested in
education. Government and non-governmental
organizations should also work together to develop partnership with public and
private sector employers in order to provide training/facilitate work placement
as part of the reintegration process.
Due care should be taken to give ample choice to victims so that
rehabilitation and reintegration becomes a holistic process, which respects
their human rights.
6. Involving
the community in the rehabilitation, reintegration and repatriation process of
trafficked victims. This means involving the families of victims and the
community by enhancing their awareness about trafficking in general and the
impact of trafficking on the individual.
7. Monitoring
the rehabilitation, reintegration and repatriation of rescued victims with the
help of non-governmental organizations.
8. Making
available to rescued victims various developmental and anti-poverty schemes
meant for the general population, both in the rehabilitation and reintegration
phase.
9. Upgrading
the conditions and capacities of institutions/homes run by the Government and
an increase in the number of such institutions/homes not only in the cities,
but also at the district and taluka levels, are of utmost necessity.
10. Recruiting
adequate number of trained counsellors and social workers in institutions/homes
run by the government independently or in collaboration with non-governmental
organizations.
11. Appointing
trained social workers and counsellors at police stations, courts and
homes/institutions of different kinds meant for accommodating victims of
trafficking.
12. Anti-trafficking
cells/units should be set up at the Centre, State, Block District and Village
levels to facilitate and monitor the process of rescue, rehabilitation,
reintegration and repatriation.
8. Cross-Border Trafficking: National and
Regional Cooperation and Coordination
Trafficking is
a regional and global phenomenon.
Enormous trafficking takes place not only within the country but also
across borders, especially between the neighbouring countries. A coherent approach is therefore required to
tackle the problem of cross-border trafficking which cannot be dealt with at
the national level alone. A strengthened
national response can often result in the operations of traffickers moving
elsewhere. International, multilateral
and bilateral cooperation can play an important role in preventing and
combating trafficking activities. States
should thus consider:
1. Adopting
bilateral agreements with neighbouring countries in order to prevent
trafficking and protecting the rights and dignity of trafficked persons and
promoting their welfare.
2. Using the
Palermo Protocol and relevant international human rights standards as a
baseline and framework for elaborating bilateral agreements mentioned at serial
no. 1 above.
3. Adopting
labour migration agreements, which may include provision for work standards,
model contracts, modes of repatriation, etc. in accordance with existing
international standards.
4. Developing
cooperation arrangements to facilitate the rapid identification of trafficked
victims including the sharing and exchange of information in relation to their
nationality and right of residence.
5. Establishing
mechanisms to facilitate the exchange of information concerning traffickers and
their methods of operation.
6. Developing
procedures and protocols for the conduct of proactive joint investigations by
law enforcement authorities of different concerned countries.
7. Ensuring
judicial cooperation between countries in investigations and judicial processes
relating to trafficking and related offences.
This cooperation should include assistance in: identifying and
interviewing witnesses with due regard for their safety; identifying, obtaining
and preserving evidence; producing and serving the legal documents necessary to
secure evidence and witnesses; and the enforcement of judgments.
8. Ensuring
that requests for extradition for offences related to trafficking are dealt
with by the authorities of the requested countries without undue delay.
9. Establishing
cooperative mechanisms for the confiscation of the proceeds of
trafficking. This cooperation should
include the provision of assistance in identifying, tracing, freezing and
confiscating assets connected to trafficking and related exploitation.
10. Encouraging
and facilitating cooperation between non-governmental organizations and other
civil society organizations in countries of origin, transit and
destination. This is particularly
important to ensure support and assistance to trafficked victims who are
repatriated.
The lack of specific and/or adequate legislation on trafficking at the national level has been identified as one of the major obstacles in the fight against trafficking. There is an urgent need to harmonize legal definitions, procedures and cooperation at the national and regional levels in accordance with international standards. The development of an appropriate legal framework that is consistent with relevant international instruments and standards will also play an important role in the prevention of trafficking and related exploitation. Moreover, a strong legal framework would also ensure an effective law enforcement response. As of now, individuals are reluctant or unable to report traffickers or to serve as witnesses because they lack confidence in the police and the judicial system and/or because of the absence of any effective protection mechanisms. These problems are compounded when law enforcement officials are involved or complicit in trafficking. Strong measures therefore need to be taken to ensure that such involvement is investigated, prosecuted and punished. Law enforcement officials must also be sensitized to the paramount requirement of ensuring the safety of trafficked victims. The Government of India having ratified the Convention on the Elimination of All Forms of Discrimination against Women, the Convention on the Rights of the Child, the two Optional Protocols to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflicts; and on the Sale of Children, Child Prostitution and Child Pornography and having signed the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organised Crime, 2000, should consider:
1. Amending or adopting national legislation in accordance with international standards in order to address all forms of trafficking and these should also be criminalized. Along with this, the content of domestic trafficking legislation should also strictly criminalize traffickers, including agents or middlemen, brothel owners and managers, as well as institutional networks that are used in the crime of trafficking.
2. Enacting legislation to provide for the administrative, civil and, where appropriate, criminal liability of legal persons for trafficking offences in addition to the liability of natural persons. The Government should also review current laws, administrative controls and conditions relating to the licensing and operation of businesses that may serve as cover for trafficking such as marriage bureaux, employment agencies, travel agencies, hotels and escort services.
3. Making legislative provision for effective and proportional criminal penalties (including custodial penalties giving rise to extradition in the case of individuals). Where appropriate, legislation should provide for additional penalties to be applied to persons found guilty of trafficking in aggravating circumstances, including offences involving trafficking in children or offences committed or involving complicity by State officials.
4. Making
legislative provision for confiscation of the instruments and proceeds of
trafficking and related offences. Where
possible, the legislation should specify that the confiscated proceeds of
trafficking would be used for the benefit of victims of trafficking. Consideration should be given to the
establishment of a Compensation Fund for victims of trafficking and the use of
confiscated assets should finance such a fund.
5. Ensuring
that legislation prevents trafficked persons from being prosecuted, detained
or punished for they are victims of situation beyond their control. Likewise, it should be ensured that
protection of trafficked victims is built into the anti-trafficking legislation
itself. The protection offered in no
way should be made conditional upon the willingness of the trafficked victim to
cooperate in the legal proceedings.
6. Providing legislative protection for trafficked victims who voluntarily agree to cooperate with law enforcement authorities.
7. Legal reform should also incorporate a gender and rights-based perspective, having regard to the fact that women are, in most cases, marginalized. For example, property and inheritance laws and procedures should be reviewed and adjusted to ensure that they do not include provisions which have a discriminatory impact on women and their livelihood options.
8. Making effective provision for trafficked victims whereby they are given legal information and assistance in a language they understand as well as appropriate other supportive measures. The Government should ensure that entitlement to such information, assistance and support is not discretionary but is available as a right for all persons who have been identified as trafficked.
9. Ensuring that the right of trafficking victims to pursue civil claims against alleged traffickers is enshrined in law.
10. The services of nodal officers – one representing the police department dealing with investigation, detection, prosecution and prevention of trafficking and the other representing the welfare agencies dealing with rescue, rehabilitation and economic/social empowerment of the victims and those at risk – appointed by the State Governments/Union Territories at the behest of NHRC should be utilized for all purposes.
11. Ensuring that law enforcement personnel of all ranks are provided with adequate training in the investigation and prosecution of cases of trafficking.
12. Establishing specialist Anti-Trafficking Units (comprising both women and men) in order to promote competence and professionalism. Besides, law enforcement authorities should be provided with adequate investigative powers and techniques to enable effective investigation and prosecution of suspected traffickers.
13. Guaranteeing that traffickers are and will remain the focus of anti-trafficking strategies and that law enforcement efforts do not place trafficked victims at risk of being punished for offences committed as a consequence of their situation.
14. Encouraging law enforcement authorities to work in partnership with non-governmental organizations and the community at large in order to ensure that trafficked victims receive necessary support and assistance. For very little can be achieved without the involvement of the community in fighting trafficking.
10. Witness Protection and Support to Victims
As mentioned at serial no. IX above,
an adequate law enforcement response to trafficking is dependent on the
cooperation and support of trafficked victims and other witnesses. In many cases, individuals are reluctant or
unable to report traffickers or to serve as witnesses because of the fear that
they would not only be harassed but also ill-treated. In order that the trafficked victims and
other witnesses shed their fears, the Government should consider:
1. Guaranteeing protection for witnesses and support to victims in law.
2. Making appropriate efforts to protect individual trafficked victims and other witnesses (including their families) during the investigation and trial process and any subsequent period when their safety so requires. Appropriate protection programmes may include some or all of the following elements: access to independent legal counsel; protection of identity during legal proceedings; in-camera trials.
11. Training, Sensitization, Education and Awareness
Training,
sensitization, education and awareness on the issue of trafficking,
particularly its adverse impact on human beings, is an important element of
prevention as well as eradicating trafficking.
This being so, all round efforts should be made to train, sensitize,
educate and raise awareness among all at all levels. In doing so, focus should be on:
1. Deepening
knowledge and understanding through sensitization and training programmes for
judicial officers, law enforcement personnel (police, immigration, border
control, customs officials, medical professionals/ personnel and labour
inspectors) and other concerned government officials on the issue of
‘trafficking’ as well as ‘gender and human rights’. These training and
sensitization programmes could be organized in conjunction with the Ministries
of Home Affairs, Women and Child Development, Labour, the National Human Rights
Commission and the National Commission for Women.
2. Ensuring
uniformity and quality in these sensitization and training programmes by
developing specialized modules for each category of officials taking into
consideration their different roles and responsibilities.
3.
The module on anti-trafficking should form a core component
of the curriculum of
4.
Building up and strengthening the capacity of
non-governmental organizations that are currently involved in rescue,
rehabilitation, reintegration and repatriation work.
5.
Till such time, a new law to deal with the problems of
trafficking is framed or amendments are made in the existing law, the police
officers, prosecutors and lawyers should be sensitized to invoke provisions of
the Immoral Traffic (Prevention) Act, 1956 in conjunction with the Indian Penal
Code, the Juvenile Justice (Care and Protection of Children) Act, 2000 and
other laws.
6.
Developing training material consisting of good practice
models, applicable treaties and laws, important judgments, rescue procedure,
case studies on rehabilitation of victims, etc. to ensure that the knowledge,
information imparted in various training/sensitization programmes is of uniform
nature.
7.
Maintaining records regarding the officials/personnel who
have been trained and the type of training received, so that later refresher
courses could be organized for them to update them on latest information and
techniques.
8.
Organizing mass scale information campaigns on the issue of
trafficking for the general public at large.
The tourism industry including airlines, hotels, travel agencies, beer
bars, holiday resorts, etc. should also be sensitized to the problem of
trafficking.
9.
Educating school and college level students on the issue of
trafficking as well as human rights and gender sensitive concerns.
10.
The media should play an important role in informing and
educating the public through newspaper, radio and other modes of communication,
and should be targeted as a key partner in preventing and ending
trafficking. It would be ideal if media
practitioners were first sensitized about the issue of trafficking and its
complexities, as this would ensure appropriate reporting on facts rather than
sensationalizing the issue.
Suggestions to be given by the
Participants.
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