Earlier this year, I contributed to the Indian Draft Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2016 under the Ministry of Women and Child Development portfolio.
This is a first and important step for India – who is one of the highest suppliers of enslaved and trafficked persons in our world today – and more specifically – in the Australasia region.
This horrific international crime is fuelled by greed and the exploitation of the world’s most vulnerable – many who are found in India.
India is home to the largest number of enslaved people in the world today – there is an estimated 18,354,700 known slaves in India today.
These victims of modern day slavery in Asia’s third-largest economy are made up of children, bonded labor slaves, beggars, sexual slaves, forced prostitutes, child slaves, and used for forced recruitment for military service according to the Global Slavery Index – published by the Australia-based human rights group Walk Free Foundation.
Of the 167 countries surveyed, India has the highest number of people living in slavery–more than 18 million people, or 1.4% of their population.
Millions of Indian children work as slaves in factories, brothels or in the homes of families. Out of poverty and desperation, parents sell their daughters, and human traffickers wait at train stations for runaways and scour for orphans in monsoon-ravaged villages.
Of course – the laws of nations set basic standards of society and engagement, and national laws play an important role in deterrence, awareness and reform, but – legislation is only as good as it’s detail, implementation and enforcement.
I perceive there being a number of problems with the drafting of India’s first anti-trafficking legislation. Currently, the Draft Bill is not consistent with various international human rights instruments relevant to the trafficking of persons.
India’s Draft Trafficking of Persons Bill needs to ensure that trafficking in persons is defined consistently with International Law, including the UN Conventions Against Transnational Organised Crime and the Protocols Thereto, especially the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime under the UNODC, in accordance with Resolution 53/111 of 1998 as an effective tool and the necessary legal framework for international cooperation in combating human trafficking in all its kinds.
The terms “trafficking, exploitation, slavery and smuggling” and the legal threshold for each needs to be extremely clear for there to be a law enforcement and prosecution response possible against these crimes.
For example, under international law, the legal definition of human trafficking has three major elements to satisfy the criminal burden: the act, the means and the purpose for trafficking to have taken place under international law.
These legal definitions their elements and the legal thresholds within them – need to be satisfied for there to have been a crime taking place, and for law enforcement to have the jurisdiction to accordingly respond, and for prosecutors to prove the elements of this crime and obtain a conviction.
The rights of women and children not to be exploited and commodified:
International instruments such as the United Nations Convention against Transnational Organized Crime which is for the prevention, suppression and punishment of trafficking in persons, especially women and children, must also be used to prevent and combat trafficking in persons, paying particular attention to the vulnerability of women and children; to protect and assist the victims of trafficking, with full respect for their human rights; and to promote cooperation among States Parties in order to meet those objectives.
The full Rights of the Child should be included in any human trafficking law reform agenda, in line with the Convention on the Rights of the Child under the international best practice standard of the best interest of the child.
Articles 3, 13, 17 – 19, 27, 34, and 36 of the Convention on the Rights of the Child are all relevant for the safety, protection and prevention of harm of children by the State – and their due diligence obligations to ensuring children’s rights are upheld and realised.
The rights of women are also to be explicitly included in any anti-traffkcing law reform, as expressed in the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW):
- Article 2: condemns all discrimination against women – in all its forms.
Article 6 – condemns all forms of traffic in women and exploitation of prostitution of women.
Articles 8, 9, 10 and 11 – ensures that women are not discriminated against in education, employment, in marriage or in political/public life.
Article 1: defines “violence against women”, and
Article 2: stipulates that violence against women is understood to encompass: dowry-related violence, marital rape, female genital mutilation and other traditional practices harmful to women and violence related to exploitation; physical, sexual and psychological violence occurring within the general community, sexual harassment, trafficking in women and forced prostitution.
Article 3: states that women are entitled to the equal enjoyment and protection of all human rights and fundamental freedoms.
The Universal Declaration of Human Rights and it’s principles are also to be acknowledged and considered – for both victim and perpetrator.
Policy initiatives to curb the demand of trafficked persons:
- Deterrence mechanisms for men who procure sexual services from women in all its forms – and seeing this as violence against women, under international human right and gender equal standards (known as the Nordic Model) is to be applied; (Campaigns such as Buyer Beware in Seattle USA and Prostitution, We Don’t Buy It in Ireland have been extremely successful)
- The implementation of fines for men who procure the commodification of women’s bodies through sexual services, or giving them a six to twelve month imprisonment sentence for ongoing procurement of sexual services in consistency with the international best practice model to curb the demand for trafficked persons known as the Nordic Model;
- Provide exit programs for women who want to get out of the sex industry – with rehabilitation options for those who have experienced human trafficking;
- Community education campaigns that seek to develop a social norm of protecting women from sexual harm, and each citizen taking responsibility to prevent that harm from occurring;
- The proceeds of trafficking crime needs to be fed into exit and rehabilitation programs for women, and buyer beware programs for the men users of the services; and
- The provision of compensation, costs or damages needs to be extended to the victims of this abhorrent crime, in recognition of their loss due to the crime committed against them.
These policy suggestions are in accordance with the international standards of the State’s due diligence obligation to protect their citizens from harm, and to prevent this harm from occurring – particularly in the instances of violence against women, especially sexual violence.
The United Nations Office of Drugs and Crime Model Law against Trafficking in Persons Resource is also a great point of reference for law reform in relation to anti-trafficking legislation.
Why is Slavery so prevalent in India?
Deep structural inequalities reflecting gender, caste and tribe, overwhelming poverty and economic inequality, a lack of social services and welfare provision, and the Hindu philosophical understanding of “you were born that way for a reason” all exacerbate large-scale slavery and trafficking in India.
Women and girls face significant discrimination and high rates of sexual violence across India, and this is particularly true for women and girls from the Scheduled Castes and Tribes.
Child labor in India includes: bonded labor; street begging; forced prostitution; child brides/domestic servitude; and forced recruitment for the armed forces.