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NATIONAL SEMINAR ON

VIOLENCE AGAINST WOMEN


21st & 22nd August, 2013
Himachal Pradesh University, Shimla
FORCED PROSTITUTION AND TRAFFICKING OF
WOMAN AND THE GIRL CHILD

Authors:
1) Rishi Raj
National Law University Odisha
Mob:- 08763983574
e-mail:- 12bba040@nluo.ac.in
2) Aman Pandey
National Law University Odisha
Mob:- 09777745371
e-mail:- amanpandey099@gmail.com

CERTIFICATE

This is to certify that the paper Forced prostitution and trafficking of Woman and the girl
child is our original work and has neither been published nor submitted for publication
elsewhere.

Authors:
Aman Pandey
Rishi Raj
Nationl LawUniversity Odisha

Contents
ABSTRACT.........................................................................................................................................3
INTRODUCTION TO PROSTITUTION.........................................................................................4
LEGAL STATUS.................................................................................................................................5
LEGAL STATUS IN INDIA...............................................................................................................5
FORCED PROSTITUTION...............................................................................................................7
WORLDVIEWS REGARDING PROSTITUTION..........................................................................9
INTRODUCTION TO TRAFFICKING..........................................................................................10
HUMAN TRAFFICKING................................................................................................................10
LEGAL ASPECT OF HUMAN TRAFFICKING............................................................................11
WOMEN AND GIRL CHILD TRAFFICKING..............................................................................11
A: Differention on basis of Will.......................................................................................................12
B: Differentiation on the basis of purpose.......................................................................................12
REASONS FOR TRAFFICKING....................................................................................................14
REATIONSHIP BETWEEN PROSTITUTION AND TRAFFICKING OF HUMANS...............15
CONCLUSION..................................................................................................................................16

ABSTRACT
Forced prostitution, also known as involuntary prostitution, is the act of performing nonvoluntary sexual activity due to coercion by a third party or when the economic or social
condition is such that the person is forced to indulge in prostitution even for basic amenities
such as food, water and shelter.
Trafficking is any act to sell, transfer, distribute, dispense, or otherwise dispose of stolen
property to another person, or to buy, receive, possess, or obtain control of stolen property,
with intent to sell, transfer, distribute, dispense, or otherwise dispose of the property to
another person.
The research paper basically talks about the growing menace of prostitution and trafficking in
India as well as around the world and how these two are closely interlinked with one another.
The legal status of prostitution has been a matter of considerable debate all over the world
and a great variation is seen in the legal laws all around the world. However, trafficking is an
illegal act all around the world.
Despite the varying legal status regarding prostitution, the law is uniform all around the
world regarding forced prostitution and considers it illegal. Moreover, the different
worldviews that exists around the world regarding prostitution have also been discussed in
detail.
Different types of trafficking on the basis of different factors have also been discussed and
the causes and the harmful effects of both prostitution as well as trafficking have been
brought into light.
The last part of the research paper which reflects our own findings includes why the menace
of trafficking and forced prostitution have not yet been tackled successfully even though laws
are being made against these crimes all around the world. We have shown that there is no lack
of ideas in making laws but there is a lack of willingness in implementing these laws due to
which the crimes have been increasing rather than declining.
Lastly, we have shown how the provisions of Article 14 of the Indian constitution can be
invoked to curb this growing menace in India. We have based our argument on the doctrine of
reasonable classification on which differentiation can be made on two grounds which have
been mentioned subsequently in the paper.
With a little more effort and willingness to implement the laws made against trafficking and
prostitution, and by reducing corruption in the society, these heinous crimes can be reduced to
a great extent even if it is not eradicated completely.

INTRODUCTION TO PROSTITUTION
Prostitution is the business or practice of providing sexual services to another person in return
of a fixed amount of payment1. The person who receives payment for sexual services is called
a prostitute or sex worker, and the person who receives such services is known by a multitude
of terms.
Prostitution, which is referred to as the worlds oldest profession 2, generates annual revenue
of over $100 billion globally.3 Therefore, it is currently one of the most profitable industries
in the modern world.
Despite the huge revenue generation from the prostitution industry, it is many a time
associated with illegal and abusive activities such as human trafficking, sexual slavery, and
sexual exploitation of children, drug dealing and illegal immigration.
There are various types of prostitution ranging from street prostitution to escorts. These
include:
1. Street prostitution- In this type of prostitution, the prostitute looks out for customers
while standing and waiting on the corner of the streets, sometimes called "the track"
by both the pimps and the prostitutes. This type of prostitution was very popular
during the early part of the millennium but is now on the wane.
2. Brothels-These are establishments which are specifically dedicated to prostitution,
and are often confined to special red light areas in cities and towns.
3. Escorts- In escort prostitution, the sexual act takes place at the residence of the person
who is availing the service or a hotel room (referred to as out-call), or it may also take
place at the escort's residence or in a room especially rented for the occasion by the
escort (called in-call). The escort may work independently or may be associated with
an organization called escort services. Escort services are organizations which provide
escorts to customers at a fixed price. The advertisements of these escort services are
done in regional newspapers as well as over the internet.
4. Sex tourism-This type of prostitution includes travel for sexual intercourse with
prostitutes or to engage in any other sexual activity. The World Tourism Organization,
which is a specialized agency working for the United Nations defines sex tourism as
"trips organized from within the tourism sector, or from outside this sector but using
its structures and networks, with the primary purpose of effecting a commercial
sexual relationship by the tourist with residents at the destination".4
1 Definition. US Legal.
2The prostitution of women and girls - Page 5; Ronald B. Flowers - 1998
3Sanger, M.D, William W. (1939). History of Prostitution: Its extent, causes and effects throughout
the world.

LEGAL STATUS
The position taken by law on prostitution varies from country to country depending on the
differing opinions on gender inequality, ethics, morality, freedom of choice, historical as
well as social norms. Therefore, the legal position on prostitution varies considerably,
from being legal and considered a profession to being punishable by death.5
In some countries, prostitution is considered a form of exploitation. In these countries, it
is illegal to buy sexual services but not to sell them which imply that the clients commit a
crime but not the prostitute. These countries include Norway, Sweden and Iceland.
However, in countries such as Germany and Netherlands, prostitution is considered a
perfectly legal profession and is regulated.
Despite the exceptions, majority of the countries deem prostitution to be illegal and the
punishment ranges from imprisonment to death penalty, which is given in most Muslim
dominated countries, including Iran.
In 1949, the UN General Assembly adopted a convention stating that "prostitution and the
accompanying evil of trafficking for the purposes of prostitution and other forms of
sexual exploitation are incompatible with the dignity and the worth of the human
person",6 requiring all parties who are signing the convention to punish pimps as well as
brothel owners and operators and to abolish all the special treatments or registration of
prostitutes. As of January 2009, the convention was ratified by only 95 member nations
including France, Spain, Italy, Denmark, and not ratified by another 97 member nations
including Germany, the Netherlands, the United Kingdom and the United States.

LEGAL STATUS IN INDIA

4 U.N. World Tourism Organization Statement on the Prevention of Organized Sex Tourism
5"Iran - Facts on Trafficking and Prostitution"
6"Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution
of Others"

In India, prostitution, which is exchange of sexual services for money is legal, 7 but a
number of related activities such as owning or managing a brothel, pimping and
pandering are crimes.8 Advertising of prostitution is also an illegal activity in India.
The primary law dealing with the status of sex workers is the 1956 law referred to as The
Immoral Traffic (Suppression) Act (SITA). According to this law, prostitutes can practise
their trade privately but are prohibited to solicit or 'seduce' customers in public. A BBC
article, however, mentions that prostitution is illegal in India; however, the law in India
does not refer to the practice of selling one's own sexual service as "prostitution". Clients
will be punished if they indulge in sexual activity too close to public place. Organised
prostitution in India, which includes brothels, pimping, advertising, is illegal too.
According to the legal position in India, as long as it is done individually and voluntarily,
a woman (male prostitution is not recognised by any law in India) can use her body's
attributes in exchange for money or any material benefit. In particular, no sex worker can
carry her trade within 200 yards of any public place in India.
The 1956 legislation has been amended and the current law in India regarding prostitution
and related activities is Immoral Traffic (Prevention) Act, 1986 or PITA. The main points
of PITA are as follows:9

Sex Workers: Any prostitute who seduces or solicits shall be prosecuted. Moreover,
call girls cannot publish their numbers to the public. This will result in imprisonment for
six months along with an appropriate amount of fine. Sex worker will be imprisoned for
three months along with fine for prostitution near any public place or notified area.

Clients: A client is guilty of consorting with prostitutes and will be charged if he


indulges in any sexual activity with a sex worker within 200 yards of a public place or
"notified area". It will result in an imprisonment for three months. The client will be
imprisoned for a minimum of seven years and a maximum of ten years if the prostitute is
a minor.

Pimps

and

Babus: Babus or pimps or

live-in

lovers

who

live

off

prostitute's earnings are guilty of a crime. Any adult male who is living with a prostitute
is assumed to be guilty of a crime for which he faces two years imprisonment unless he
can prove otherwise.

Brothel: Maintaining and owning a brothel is illegal and a person found guilty of the
same can be imprisoned for a maximum of three years. Detaining someone at a brothel

72008 Human Rights Reports: India


8"Prostitution: should the laws be changed?" BBC News.
9 Immoral Trafficking Act

for the purpose of sexual exploitation can lead to prosecution. (Imprisonment of more
than 7 years,)

Procuring

and

trafficking:

person

who

procures

or

even

attempts

to procure anybody for the purpose of sexual exploitation is liable to be punished. Human
trafficking is also a crime and a person found guilty can be imprisoned for up to seven
years.

Rescued Women: The government has a legal obligation to provide rehabilitation


services to rescued sex workers in a "protective home" for any sex worker requesting
assistance.

The laws were intended as a means of limiting and eventually abolishing prostitution in India
by gradually criminalising various aspects of sex work.

FORCED PROSTITUTION
Forced prostitution, also known as involuntary prostitution, is the act of performing nonvoluntary sexual activity due to coercion by a third party or when the economic or social
condition is such that the person is forced to indulge in prostitution even for basic amenities
such as food, water and shelter.10
Therefore, there are basically two ways in which a person is forced into prostitution. Firstly,
by the coercion of third party which include forceful procurement by pimps and owners of
brothels. Secondly, a person can be forced to take up prostitution as a profession due to the
economic condition. This is known as survival sex. Survival sex is a situation in which a
person is driven to prostitution by a need for basic necessities such as food and shelter. This
type of prostitution is common among the homeless and in refugee camps. Thus, in survival
sex, a person is not coerced by a third party but is forced into prostitution due to his or her
own circumstance.
Forced prostitution of the first kind, in which a person is coerced by a third party to enter into
the prostitution industry is illegal and is regarded as an offence under customary law in all
countries.11According to a report by completed in 2008 by the U.S.A Government, 6, 00,000
10 Lim, Lean (1998). The Sex Sector: The Economic and Social Bases of Prostitution in Southeast
Asia
11Bantekas, Ilias; Susan Nash (2003). International Criminal Law 2/E

to 8, 00,000 people are trafficked across national borders, which does not include many more
which are trafficked within their own countries. Approximately 80% of the transnational
victims are women and girls and majority of them are trafficked into commercial sexual
exploitation.
The prostitution industry has tremendous value throughout Asia and Japan is a country in
which trafficked women from Philippines and Thailand are forcefully procured into the
commercial sex industry. As of 2011, an estimated 200,000 to 400,000 people are trafficked
through Southeast Asia, much of it for prostitution.12 It is common that Thai women are lured
to Japan and sold to Yakuza-controlled brothels where they are forced to work off their
price.13
Although the legality of voluntary prostitution varies from country to country, forced
prostitution is a crime all over the world. It is illegal and is regarded as an offence under
customary law.
One of the main reasons why the number of women who are trafficked for sexual
exploitation has increased in the recent years is the lack of education which has resulted in
lack of awareness in the society. This lack of education is a direct result of poverty due to
which trafficking in third world countries is a lot higher than in developed countries. The
majority of women and girls trafficked around the world are for sexual exploitation. Only a
few girls are trafficked to work as servants or work in agriculture industry. The women are
exploited sexually and psychologically. Due to the lack of awareness of the families of these
girls, they are under a misconception that the girl will get a better job opportunity outside and
the financial condition will improve. However, these girls, once out of their own country,
never get to hear about their own families and are sexually exploited. Therefore, factors like
poverty, lack of awareness and lack of job opportunities are major factors which are
contributing to the increase in forced prostitution around the world.
Also, The United Nations stated in 2009 that sex trafficking is the most commonly identified
form of human trafficking and estimates that about 79% of human trafficking reported is for
prostitution.14
The people who are forced into prostitution face various kinds of difficulties which include
health problems as well as violence. In most places, prostitution is associated with the spread
12Far Eastern Economic Review: "Costs Of Human Trafficking In Southeast Asia."
13A modern form of slavery: Trafficking of Burmese Women and Girls into Brothels in Thailand
14"The 2009 UN Report on TIP"

of Sexually Transmitted Diseases (STDs). Lack of condom use among prostitutes and their
clients has been cited as a factor in the spread of HIV in Asia: "One of the main reasons for
the rapid spread of HIV in Asian countries is the massive transmission among sex workers
and clients".15As a result, prevention campaigns aimed at increasing condom use by sex
workers have been attributed to play a major role in restricting the spread of HIV.16 Typical
responses to the problem of spread of STDs is banning prostitution completely or educating
prostitutes about the risk of such diseases which appears to be a much more viable option.
Another major problem faced by sex workers is the psychological effect that the prostitution
industry has on them. The prostitutes are forced to have sex with any person until they are
paying for the act. Therefore, the prostitute does not have any choice but to indulge in sexual
activity with whomever is willing to pay. This over-utilisation of the human body not only
leads to physical discomfort but also has a long lasting effect on the mind of the prostitute.
Female prostitutes may also be at risk of violent crime17as well as possibly at higher risk of
occupational mortality than any other group of women ever studied.
To tackle the growing menace of trafficking and forced prostitution, we have to tackle the
root cause of it. The main cause of this is the lack of opportunities, poverty and lack of
awareness in third world countries. Therefore, education will play a big role in curbing
involuntary prostitution to a great extent as it will raise awareness about the dangers
associated with prostitution. Creating new job opportunities and eradicating poverty will also
help to curb prostitution to a great extent as many are forced to join this profession due to
economic conditions.

WORLDVIEWS REGARDING PROSTITUTION


There are primarily three worldviews regarding prostitution currently:
1. Abolitionism- According to this view, the prostitute is seen as a victim and
prostitution is considered a crime against women. It is seen as a violation of

15Rojanapithayakorn W (November 2006). "The 100% condom use programme in Asia". Report
Health Matters
16"HIV Prevention and Sex Workers"
17Justicewomen.com

human rights and the clients and pimps are prosecuted. This is currently the
situation in countries such as Sweden and Norway.18
2. Regulation- According to this view, the prostitute is considered a worker and
prostitution is considered a legitimate business. Prostitution is legal but is
regulated to a great extent. This view exists in countries such as Netherlands
and Germany.
3. Prohibitionism- According to this view, the prostitute is considered a criminal
and prostitution is considered a crime. This is the current situation in almost
all parts of United States of America and most Muslim dominated countries.
According to me, voluntary prostitution should not be illegal but should be regulated and
controlled. This is because not all prostitutes in the sex industry are there against their will.
Many have made their own decisions and are even proud about their profession. Also, the
prostitution industry provides livelihood to many. Criminalizing prostitution would take away
their livelihoods and would leave them to die a painful death. However, trafficking and the
resulting sexual exploitation should be curbed immediately as it violates basic human rights
and leaves them in the middle of nowhere.

18 "New Norway law bans buying of sex". BBC News Online.

INTRODUCTION TO TRAFFICKING
Trafficking is not a term generally found in any statute book or anywhere in legal documents
of any country as it was unknown to common law and hence any definition for a particular
jurisdiction must defer to the relevant reference in criminal statutes of that particular country.
But there are many judgments which gave the definition of trafficking according to their
respective knowledge and this was criticized by many writers.
As in the case of The State of washington v. Joseph Robert Michielli, a senior judge of washington
defined trafficking as any act "... to sell, transfer, distribute, dispense, or otherwise dispose of
stolen property to another person, or to buy, receive, possess, or obtain control of stolen
property, with intent to sell, transfer, distribute, dispense, or otherwise dispose of the property
to another person"19
In the above definition, the learned judge has only taken into consideration trafficking of
stolen goods and ignored the other aspects of trafficking. If we follow this definition, then it
will be very difficult for us to define Human Trafficking in future.
Justice Bird said that Some element or ingredient beyond mere possession is required to
constitute trafficking. Unlawful possession is not an essential ingredient of trafficking and the
accused person can be in unlawful possession, although he may not be not engaged in the act
of trafficking.20
This definition given by justice Bird is unanimously followed all over Canada. There were
many jurists, writers and philosophers who tried to define trafficking and all of them were
criticized for their definition by others. As this problem of trafficking was indifferent for the
history of human civilization, every jurisdiction has its own definition of trafficking and is
preserved in their respective criminal statute.

HUMAN TRAFFICKING
Human trafficking means the recruitment, transfer, transportation, harbouring of
receipt of humans by use of force, coercion, abduction, fraud or deception for the purpose of
their exploitation. A similar definition was given by the UN 21. It is the commercial trade of
Human Beings for the purpose of subjecting them to involuntary acts such as forced
prostitution, begging, forced labour, slavery, servitude or the removal of organs. Some people
19Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)
20R v MacDonald, 43 W.W.R. 238, 41 C.R. 234 and at 1963 CarswellBC 98
21 Article 3,UN Convention against Transnational Organized Crime

often confuse trafficking of humans with human smuggling 22. These two acts have no relation
with each other as one is a crime against state while the other infringes the personal right of
individuals. In Human smuggling, people voluntarily request or hire an individual, known as
a smuggler, to covertly transport them from one location to another. After transportation and
arrival at their ultimate destination, the smuggled person is usually free to find their own way.
One important difference between the two is the fact that in human smuggling, both the
smuggler and the person who is smuggled are liable for infringing municipal law while in
trafficking; the trafficked person is considered to be innocent. In his Opening Statement, Pino
Arlacchi (Under Secretary General, Director General) to the International Seminar on
Trafficking in Human Beings considered Trafficking as the 3rd largest criminal activity
affecting countries at the international level.23

LEGAL ASPECT OF HUMAN TRAFFICKING


Trafficking in every aspect is illegal all across the globe and there are many laws which are
prevalent in different countries to deal with this man made menace, according to the rate of
trafficking in their country. In all over the whole world, there is one authority which takes
care of trafficking at global stage and that is United Nations Organisation on Drugs and
Crimes. International law is a very powerful instrument for dealing with the social evil of
human trafficking. Agencies of international law that have set the course for defining,
preventing and prosecuting Human Trafficking are United Nations Convention against
Transnational Organised Crime and its two related protocols, the United Nations Protocol to
Prevent, suppress and punish Trafficking Persons: especially women and children and the
United Nations protocol against the smuggling of Migrants by land, Sea and Air which
entered in to force in 2003-2004. These conventions and protocols were created by UNODC
which have supported International laws ability to fight and eradicate human trafficking.
Apart from these enforcing instruments, UNODS also established the UN global Initiative to
Fight Human Trafficking in the year 2007. However, as we all know that International laws
are weak laws and in case there is a conflict between International law and Municipal Law,
municipal law would prevail. Therefore, it is high time to develop the municipal law of
countries and make more stringent laws to deal with the rapidly increasing crime of human
trafficking. UNODC provides practical help to different states of the world by not only helping them in
drafting anti-trafficking laws and creating strategies for that but it also assists them with the resources to
implement them. US, in its watch list for human trafficking, have placed India in Tier-2 for 5 th consecutive year
as India has failed to take effective steps to check this social evil. This report considers India as a source
destination for trafficking of persons. It is a very complex phenomenon which is fuelled by the exceptional
growth in the sex market globally.

22 The facilitation, transportation, attempted transportation or illegal entry of a person or persons


across an international border, in violation of one or more countries laws, either clandestinely or
through deception, such as the use of fraudulent documents.
23International Seminar on Trafficking in Human Beings, Brasilia : 28-29 November 2000

WOMEN AND GIRL CHILD TRAFFICKING


Women and girl Child trafficking essentially means trafficking of women and girl child for
different purposes such as sexual exploitation, forced marriages, slavery etc. This is one of
the most prevalent and active form of trafficking and affects every region in the world. The
states may act as a source, transit or destination country. Women and children are generally
trafficked from developing countries and from vulnerable parts of the society in developed
countries. They are lured by promises of decent employment for leaving their homes. A very
organised network works for the transportation of these trafficked people.
A: Different ion on basis of Will
i

ii

Voluntary
The trafficking where the trafficked person is lured by different promises as to
improve their living condition, job promises, money etc, and the person
wilfully choose to be trafficked from one state to other voluntarily. After
reaching the destination, they are not used for the purpose for which they have
been brought there, but have to work according to demands of the public.
Involuntary
As contrary to voluntary, where people agree and give their consent for trafficking, in this case
people are either kidnapped or trafficked by use of force.

B: Differentiation on the basis of purpose


i

Forced Labour
This form is also known as involuntary servitude. This may result when
unscrupulous people begin to exploit workers or when there is high rate of
unemployment, poverty, crime, discrimination or political conflict. The
victims are particularly Vulnerable but there are many cases where victims are
forced to work as labours in their own country. Female victims of this,
especially in the domestic servitude, are sexually exploited as well.

ii

Forced Child Labour


There are many international organizations and institutions who are working
on this. Moreover there exists many Municipal Laws in different states to deal
with this increasing problem. The main concern on this problem is the
growing consensus but in any case the worst form of child labour including
bonded and forced labour should be eradicated. A child or teen can become a
victim of trafficking irrespective of the location of that non-consensual
exploitation.

iii

Sex trafficking
The cases where an Adult is coerced, forced or deceived in the business of sex
or sex trade, or maintained in the sex trade by coercion, comes under sex
Trafficking. All persons who are involved in this, be it recruiting, receiving, or
obtaining person for that purpose are held liable for the crime of trafficking.
Apart from this, sex trafficking can also take place within Debt Bondage as
they are forced to continue prostitution through the use of debt which is
unlawful in nature purportedly incurred through their transportation, even their
crude sale which the traffickers insist they must pay so as to get free. It is

important to know that persons consent to participate in social evil of


prostitution is not legally determinative. If they are held in the service through
psychological manipulation or physical force they are considered to be the
victims of trafficking.

iv

Bonded labour
The form of force/coercion in this case is the use of bond. This can be
considered as a type of forced labour but here the force is in the form of a
bond. This practice has been prohibited in US long back by the term peonage
and the Protocol of Palermo requires its criminalization as one of the forms of
trafficking of humans. Basic for of debt incurred has been dealt before under
debt bondage, workers may also incur debt in more traditional manner of
bonded labour. For example, in south Asia, there are millions of trafficking
victims who are still working to pay off their ancestors debt.24

Child sex trafficking


UNICEF, in one of its report claimed that as many as 2 million children are
victims of prostitution in the context of global commercial sex trade. There
exist many International covenants and protocols which obligate
criminalization of the sexual exploitation of children for commercial purposes.
Palermo Protocol and U.S. law as well as legislation of many countries around
the globe prohibits commercial sex trade of children in particular. There are
many ill effects of sex trafficking on children, including long lasting physical
and mental trauma, STDs, drug addiction, malnutrition, unwanted pregnancy
and possible death.

vi

Involuntary domestic servitude

vii

It is a unique form of forced labour whose workplace includes informal


gatherings, living quarters and they are not often shared with other workers.
This creates an environment which often socially isolates the domestic
workers and they are conducive to non-consensual exploitation since
authorities cannot inspect private property.
Trafficking in organs
This is the fastest growing crime nowadays. Trafficking of
humans takes place for the purpose of using their organs, in
particular kidneys. There are many countries where the
waiting for transplant of organs is very long and criminals
have seized and utilized this opportunity to exploit
desperation of patients and the potential donors. The basic
reason for increase in this type of trafficking is the aging
population and increase in cases of diabetes in many

24Trafficking in Persons Report 2011; US department of State

developed countries. Further increase in these factors will


raise the requirement for organs and make this crime even
more lucrative.
viii

Commercial sexual exploitation of children in tourism


This crime has been prevalent in Asia since time immemorial
and has now taken hold in Africa as well as in some parts of
central and South America. The basic cause for promotion of
this is the growth of inexpensive travel and relatively low risk
of prohibition and prosecution in these destinations for
engaging in sexual relations with minors.

Many attempts are made to criminalize the act of trafficking. Article 3 of the trafficking in
persons protocol is instituted to provide consistence and consensus around the world for the
phenomenon of trafficking in persons. Moreover, article 5 requires that the conduct set out in
Art. 3 be criminalised in the municipal law. In addition to the criminalization of trafficking
itself, the trafficking in persons protocol requires or demands criminalization also of:
Any attempt to commit such offence
Participation or accomplishment in any such offence.
Performing or directing other to commit such offence
Further, it was suggested by the protocol that nations should adopt the broader definition as
prescribed by the protocol. The Municipal law for trafficking should be flexible and dynamic
so as to empower them to respond to trafficking which occurs both across borders and within
the country between states for a range of purposes and not only for commercial sex trade, and
takes place with or without involvement of any organized crime groups.
.

REASONS FOR TRAFFICKING


Exploitation is driven by poverty, uneven development, official corruption, gender
discrimination, harmful traditional and cultural practices, civil unrest, natural disasters and
lack of political will to end it. There are many factors governing and promoting the crime of
trafficking. Both supply and demand factors foster the growing trafficking industry.
Demand Factors:
a Usually there is an increase in demand for cheap labour, womens labour in low status
work in the domestic and entertainment spheres due to which there is increase in
demand by the employers.
b

Rapid expansion in commercial sex industry fuels demand of sex workers. Due to
increasing fear of HIV infection, usually male clients prefer younger women and girls
which demands new sex workers and hence aids to the crime of trafficking.

Development policies, tourism promotion and different patterns of development that


depend on temporary migrant workers, particularly males.

Male dominated society and their perception of women in society and womens
unequal socio-economic status.

Supply factor:
a There is increase in poverty of women due to the rapid increase in the population
b Lack of awareness, education and employment opportunities also aids in trafficking.
c There is very big economic disparities between the countries and the nationals of the
countries and regions, fuels the demand for trafficking from low income to highincome areas. People of High income group use people of low income group which
leads to their exploitation.
d Globalization and economic liberalization have relaxed controls, opened borders
between countries, facilitating population mobility.
e International migration of women into the labour market provides increased
opportunities and channels
f For trafficking.
g Civil and military conflicts push people to flee their countries, encouraging crossborder trafficking.
h Erosion of traditional family values and the pursuit of consumerism encourage the
sale of women and children.
i A lucrative business with high monetary returns attractive to crime syndicates.
j The growth of transnational crime, and the expansion of drug trafficking networks act
as

REATIONSHIP BETWEEN PROSTITUTION AND TRAFFICKING OF


HUMANS
There exists a strong relationship between trafficking and prostitution. As it was mentioned
earlier that trafficking is done for many different purposes including labour and sexual
exploitation. From the total number of people who are trafficked, almost 80% are involved
for sexual exploitation. This high percentage shows that the involvement of trafficking in sex
industry is very high. Moreover, the data helps us to understand the direct relationship that
exists between trafficking and prostitution.
We should adopt a strong position against legalized prostitution based on the evidence that
prostitution is in inherently harmful and dehumanising, and it fuels trafficking of humans,
which is a form of modern-day slavery. Same legal position was adopted by US to deal with
the crime of trafficking and prostitution. 25 Prostitution and many other activities related to it
-including pimping

25National Security Presidential Directive, December 2002

And patronizing or maintaining brothels (although illegal) also fuel the growth of human
trafficking by providing a faade behind which traffickers indulged in sex trafficking operate.
In a country or state where prostitution is legalised or tolerated up to some extent, demand for
human trafficking is high and there is nearly always an increase in the number of women and
children trafficked in to commercialized sex. It was estimated that around 600,000 to 800,000
people are trafficked across international borders annually, out of which 80 percent of victims
are female, and up to 50 percent are minors. Most of these women and children are used in
prostitution regularly.
Basic cause of expansion in the market for commercialised sex is legalisation of prostitution,
opening markets for criminal enterprises for trafficking and creating a safe haven for those
who traffic people into the business of commercialised sex. Organized crime networks neither
register with the government, nor pay taxes, and nor protect prostitutes. Legalization of
commercialised sex simply makes it easier for criminals to blend in with a purportedly
regulated sex sector and makes it more difficult for government to identify and punish those
who are involved in trafficking people.

CONCLUSION
There are no stringent laws to prevent the barbaric crimes of forced prostitution and
trafficking in India as well as around the law. The laws prevalent have not been able to
restrict these practices. Many laws have been proposed in India to fight this evil but most of
them have not been implemented due to the high level of corruption in the country at the
present moment.
Researchers have suggested that a significant number of girls who are rescued from the
clutches of sexual exploitation are re-trafficked, thus exposing serious flaws in the laws as
well as the programmes implemented for the rehabilitation of victims.26
Due to lack of legal documents that are there with the victims of trafficking, it becomes
difficult for them to lodge a complaint against this type of a crime. If the government gives
these people immunity against these legal documents and makes a provision that they can
lodge a complaint without legal documents, then non state entities will take advantage of
such a provision.
Corruption, which is one of the biggest problems all around the world, is one of the main
reasons why laws against prostitution and trafficking have been passed but have not yet been
implemented. The implementation of these laws is an urgent requirement to reduce this
menace.
There are many legislators who have proposed amendments in the Immoral Traffic
Prevention Act but they have not yet been implemented and do not have the force of law.
There are a many cases which are still pending before the Supreme Court relating to
trafficking that could strengthen the law in this regard. According to the current legislation in
India, the law prohibits the selling and buying of minors for the purposes of prostitution but
does not include many other activities such as recruiting, harbouring, transporting,
transferring or receiving trafficked children. Moreover, the Indian Penal Code prohibits
importing a foreign girl for the purposes of illicit sex but this provision does not give any
protection to the girls from India and does not include boys at all. A child friendly legal
process must be established in which the victims of trafficking are not punished in any way,
but are provided with a proper rehabilitation as well as a professional legal counsel. No laws
are present to deal with the interstate trafficking of women and the girl child in India.
There are basically two types of trafficking which exists, one where the trafficking is
voluntary and is based on the decision of the person who is being trafficked and the other is
26HAQ Centre for Child Rights. Child Trafficking in India (unedited version). 2005.

involuntary trafficking which takes place without the consent of the person. The people who
are trafficked involuntarily have almost no chance of escape. However, the people who are
trafficked voluntarily can repay the debt and escape from the shackles of trafficking and other
related activities. However, this repayment generally takes an average time of ten years. 27
Moreover, the law gives very little protection to those who have already been victims of
trafficking. The legal process in India is very lengthy due to which there is a doubt whether
the victim will get justice or not. Even if justice is delivered, it would have been very long
since the crime had been committed. Moreover, victims of trafficking who have been
exploited sexually are most likely to have been infected by diseases such as HIV and TB due
to which there life expectancy reduces considerably. Therefore, many might even die before
justice is delivered or they have a chance of being rehabilitated. Due to these problems,
special courts should be established in our country for speedier trials of trafficked victims as
well as victims of forced prostitution under Article 14 of the Indian Constitution on the basis
of the doctrine of reasonable classification.
As it was found in the case of Kathiranningrawat vs State of saurashtra28, for applying
doctrine of reasonable classification, the case must fulfil two conditions that are:
1) Intelligible Differentia.
2) Rational Nexus with the objective that the state wants to achieve.
In the cases relating to trafficking, there is clearly an intelligible differentia involved. The
special courts should be created so as to deal with the cases related to trafficking and
prostitution. Hence this fulfils conditions given under the Indian laws.
Objective of the state in cases of trafficking is to eradicate the evil of trafficking and this will
help to discourage the crime of trafficking and also create fear in mind of people who are
involved in it.

27Primary source
28 The Saurashtra State Public Safety Measures Ordinance, 1948, was passed "to provide for public
safety, maintenance of public order and preservation of peace and tranquillity in the State of
Saurashtra." As crimes involving violence such as dacoity and murder were increasing, this Ordinance
was amended by the Saurashtra State Public Safety Measures (Third Amendment) Ordinance, 1949,
which, by secs. 9, 10 and 11, empowered the State Government by notification in the official gazette
to constitute Special Courts of criminal Jurisdiction for such area as may be specified in the notification, to appoint Special Judges to preside over such Courts and to invest them with jurisdiction to
try such offences or classes of offences or such eases or classes of cases as the Government may, by
general or special order in writing. Court observed that it is reasonable classification.

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