Print edition : November 13, 2015

At the red-light area in Delhi, a file photograph. Ending sex trafficking requires an attack on the industry's immense profitability and a radical shift in the conduct of economic globalisation, says the author Siddharth Kara. Photo: Meeta Ahlawat

The National Legal Services Authority recommends various steps to curb human trafficking for sexual exploitation and to rehabilitate victims of the crime.

IN August, the National Legal Services Authority (NALSA), which provides free legal services to the weaker sections of society, submitted a report to the Supreme Court with recommendations for the prevention of trafficking for commercial sexual exploitation and for the rescue and rehabilitation of its victims. This was following a directive of the court while hearing a public interest litigation (PIL) petition filed by the Human Rights Law Network on behalf of the anti-trafficking organisation Prajwala in 2004 seeking the creation of a victim-protection protocol. The NALSA report exposes several gaps in the existing law.

It has recommended the setting up of a nodal agency at the national and State levels and a district-level task force to deal with the issue of prevention of trafficking and rescue and rehabilitation of rescued sex workers. Additional Solicitor General Neeraj Kishan Kaul told the bench consisting of Justices Anil R. Dave, Madan B. Lokur and Kurien Joseph that the Centre had examined NALSA’s recommendations and was “in agreement with most of them”.

A Central Advisory Committee on Combating Human Trafficking, which met thereafter, said that there was a need to differentiate between voluntary sex workers and those who were forced into such activities and that the current report was prepared with reference to trafficked victims only. Several States, too, put forth their ideas. Gujarat, shockingly, said that there was no serious problem of trafficking in the State that it was not advisable to have a separate police station for trafficking, and that corporate social responsibility (CSR) funding may be tapped for the rehabilitation of victims.

Dushyant Dave, the petitioner’s counsel, hailed the report as “fantastic” but pointed out that the real issue remained enforcement rather than setting up “committee after committee after committee”. He pointed out that the Centre had sufficient powers to impress upon the States and produce achievable results.

However, it seems the Centre has lost the plot already. Recently, Minister for Home Affairs Rajnath Singh tweeted: “Human trafficking is a grave concern & there should be detailed SOPs for reintegration, repatriation & rehabilitation of trafficked victims.” In doing so, he revealed his unawareness of the several standard operating procedures (SOPs) already developed by the Ministries of Women and Child Development (WCD), Labour and Employment, and Railways, the United Nations Office on Drugs and Crime and the Home Ministry itself, which has established some 300 anti-human trafficking units (AHTU) and issued advisories to the States from time to time. It is another matter that all of these SOPs have been ineffective so far.

At a conservative estimate, there are 2,50,000 women engaged in the flesh trade in the country, according to Dave. Activists, however, believe that the figures are either exaggerated or under-reported as there has never been an audit of the situation on the ground.

Sex slaves

According to Siddharth Kara, the author of Sex Trafficking: Inside the Modern World of Sex Slavery, one woman or child is trafficked for the purpose of sexual exploitation every 60 seconds in the world. Kara criss-crossed the globe and found that sex slaves are invariably moved from poor areas and countries to richer areas and countries. “Trafficking routes in South Asia primarily start in rural Nepal, Bangladesh, or India and end in Indian urban centres such as Mumbai, New Delhi, Chennai, or Kolkata. From India, some victims are re-trafficked to the Middle East [West Asia] and West Europe,” he reported.

The central argument of his book is that “the enormity and pervasiveness of sex trafficking is a direct result of the immense profits to be derived from selling inexpensive sex around the world. The structures of Western capitalism, as spread through the process of economic globalisation, contribute greatly to the destruction of lives this profitability entails. Sex trafficking is one of the ugliest contemporary actualisations of global capitalism because it was directly produced by the harmful inequalities spread by the process of economic globalisation: deepening of rural poverty, increased economic disenfranchisement of the poor, the net extraction of wealth and resources from poor economies into richer ones, and the broad-based erosion of real human freedoms across the developing world. Ending sex trafficking requires an attack on the industry’s immense profitability and a radical shift in the conduct of economic globalisation.”

In other words, simply checking trafficking will not help as long as centres of exploitation exist. Acquisition of sex slaves primarily occurs in one of these five ways: deceit (false job promises), sale by family, abduction (least popular as it complicates trafficking), seduction or romance (marriage), or recruitment by former slaves (rarer), Kara says. In India, Dalits, tribal people and other marginalised communities are extremely vulnerable to trafficking and constitute a large proportion of the bonded labour force.

Dr Sunitha Krishnan, the founder of Prajwala, advocates a specialised and mandated national body on the lines of the Narcotics Control Bureau to deal with what she calls the third biggest organised crime globally and a $10-billion industry. She believes that sex slavery is not just a social issue but operates like a criminal syndicate and needs to be tackled accordingly. “Unlike drug trafficking, human beings are involved here and both the parties—the criminal and the victim—are humans. A rights semantics will not work here as it is organised crime we are up against. The process of trafficking destroys the body, mind and soul of a person and a corresponding support system has to be in place to take care of this damage,” she told Frontline.

In a decade of activism, the one significant change Sunitha Krishnan finds is that Section 370 of the Indian Penal Code (IPC) defining trafficking has now included the word “servitude”. Secondly, she says, the Government of India has acknowledged that it is a serious problem and taken some steps, including the establishment of AHTUs. Lastly, the government has undertaken to train those who are involved in fighting this crime in conjunction with organisations like Sunitha’s.

Ever since Sunitha started the Shame the Rapist Campaign by posting rape videos on social media urging people to help identify the rapists, she has received 90 more videos. The Social Justice bench of the Supreme Court, headed by Justice Lokur, has ordered a probe by the Central Bureau of Investigation (CBI) into the matter.

The NALSA report recognises some of these lacunae and recommends amendment of the Immoral Trafficking Prevention Act (ITPA) of 1956, the provisions of which are misused disproportionately against sex workers and also against women in general. In July this year, using provisions of the ITPA, 40 couples were rounded up by the police in a raid in a hotel on the outskirts of Mumbai, implying that consenting adults had no right to privacy.

The NALSA report points out that there is no definition of “sexual exploitation” in the ITPA or the IPC and recommends that it be redefined to include “a situation where a person under coercion and absence of free will is sexually used or abused, or explicitly portrayed, either physically, or through media (print, electronic, internet) in a sexual manner, for the benefit of another person(s), either through monetary gains, or compensation, or favours, or any other arrangement, causing unlawful gain as a result of such act to any person and includes brokering relationships that are coerced”. This seeks to expand the scope of the term and change significantly the way women are portrayed in the media. The Protection of Children from Sexual Offence Act (POCSO), 2012, has defined sexual offences and their aggravated forms, but again there is no definition of commercial sexual exploitation.

The NALSA report was prepared after deliberations with several judges, a Joint Secretary in the Ministry of Home Affairs, the Special Commissioner of Police (Crime) and representatives of the WCD Ministry, the National Commission for Protection of Child Rights (NCPCR), the National Human Rights Commission (NHRC), the Centre for Advocacy and Research (CFAR), HAQ: Centre for Child Rights, the Bachpan Bachao Andolan, and the Shakti Vahini in addition to Prajwala.

But Meena Seshu, founder of SANGRAM (Sampada Grameen Mahila Sansthan), an HIV/AIDS prevention, treatment and support organisation, asks how many sex workers were involved in its preparation. She insists that women who are living the life, facing the violence and struggling through it all have to be a part of whatever process the government initiates. “I’ve worked for 22 years with sex workers and I can’t presume to write guidelines for them,” she says. She cautions against an emotional reaction to the issue. She points out that of all the marginalised people, women in prostitution are treated as specimens and only seen as victims and trafficked sex slaves. By not treating them as sex workers, their agency is being denied to them and consequently their rights, she argues.

Meena says while it is true that one can be trafficked into sex work, people often mix up trafficking and sex work. She says that trafficking is something that can be dealt with by the sex workers themselves. Instead of trying to “rescue” them and dumping them in correctional homes, they should be strengthened, she says. “I find it highly problematic to lock up adult women in correctional homes as if there is something wrong with their behaviour,” says Meena.

‘Root out exploitation’

According to her, there is no agreement on the use of the term “exploitation” internationally, too, as often abolitionists who have moral problems with sex work use the term “sexual exploitation”. Importantly, some of the anti-trafficking strategies affect the sex workers’ rights movement. A better strategy, says Meena, is to demand compensation for these women to improve their lives. “Some of the women actually ask: where were you when I was actually being trafficked? What we want is a safe mobility policy for women, those who want to move can move without the fear of being sucked back into the trade, which is often the case. Women have the ability to consent to their movement. If you want to help them, root out exploitation and violence. Ask them what solutions they want rather than have these drawing room discussions about them,” she says.

One of the recommendations in the NALSA report is that the AHTU be declared a “thana” for facilitating the registration and investigation of cases until an organised crime investigation agency is set up. Meena points to the flaws in such anti-trafficking strategies. “The police have always been most oppressive towards these women, they conduct raids and beat them up and now you bring them in to ‘rescue’ them? Why should a sex worker trust them today, when yesterday they came and beat her up?”

Meena believes there is scope for decriminalisation and destigmatisation of the profession and says that safe working conditions should be created so that nobody can buy or sell them and nobody can do the things that happen to them. “Today the money they make is taken away from them by violent gangs. They can’t even go to the police because the police tell them they can’t be raped. They are absolutely outside the margins. Construction workers and ragpickers also perform highly risky and dehumanising labour. But no one has a moral issue with that. But with sex, you have a problem,” she says.

The NALSA report points to the lopsided efforts of the government in focussing on correction and detention rather than on empowerment and reintegration. It suggests that the directions issued in the case of Budhadev Karmaskar vs State of West Bengal, 2011, wherein a Supreme Court-appointed committee had submitted a detailed report on the rehabilitation of sex workers, be considered. On July 26, 2012, Justices Altamas Kabir and Gyan Sudha Mishra, in Criminal Appeal Budhadev Karmaskar vs State of West Bengal & Others, ordered creation of “Conditions conducive for sex workers to live with dignity in accordance with the provisions of Article 21 of the Constitution”. (Article 21 is interpreted to mean that food, water, decent environment, education, medical care, shelter, right to work and right to livelihood shall be available to all without discrimination.)

They clarified that it was an effort to advocate the cause of offering an alternative source of employment to only those sex workers who are keen on rehabilitation. “When we say conditions conducive for sex workers to live with dignity, we unambiguously wish to convey that while the sex workers may be provided alternative source of employment for their rehabilitation to live life with dignity, it will have to be understood in the right perspective as we cannot direct the Union of India or the State authorities to provide facilities to those sex workers who wish to promote their profession of sex trade for earning their livelihood, except of course the basic amenities for a dignified life, as this was certainly not the intention of this court even when the term of reference was framed earlier,” said Justice Mishra.

Meanwhile, as lawmakers and activists engage in endless debates on the right course of action and ideology, women and children are trafficked into bonded labour conditions every day.

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