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National Legal Services Authority Submits Recommendations to Supreme Court for Combating Human Trafficking in India

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Human trafficking - Concept PhotoNATIONAL LEGAL RESEARCH DESK

The National Legal Services Authority (NALSA) submitted a report to the Honourable Supreme Court of India pertaining to effectively tackling the issue of trafficking in women and children, rescue, rehabilitation, monitoring and functioning of shelter homes, initiated in the Writ Petition (C) No. 56/2004 in Supreme Court titled Prajwala vs Union of India . The report was submitted by a Committee constituting eminent judges from the Supreme Court of India, members from several government/non-government bodies[1] consisting suggestions derived from deliberations of Sub-Committees which subsequently produced reports on the following:

  1. Concepts and Definitions
  2. Identification of strengths and gaps in legislation, schemes, practices, processes and existing protocols, including in judgments;
  3. Preparation of comprehensive protocols on prevention, pre-rescue, rescue, post-rescue, and rehabilitation.

NALSA thereafter placed the recommendations of the Committee before the Court to initiate the process of re-defining the problem of sexual exploitation, transcendence of overt trafficking to other emerging forms, linkages between the several forms of human exploitation and how to address it. Sexual exploitation among women and children can be via inter-generational prostitution, pornography, placement agencies, massage parlours, friendship clubs, escort agencies, dance bars, moving theatres, circuses, etc.   The Committee proceeded to first highlight problem areas read in context of existing statutes while examining the persisting lacunas and the subsequent methods to improve upon them. It must be understood that trafficking is continuing offence and commercial sexual exploitation should be seen as an involuntary entry into the profession, and the years spent thereafter entailing a continuum of exploitation. The existing government schemes regarding poverty alleviation, protection of children, women empowerment should be channelized to enable inter-state co-ordination and inter departmental collaboration. The raid and rescue operations must not be conducted in an ad-hoc manner, without planning since eventually it results into victim penalising. Most of the operations do not differentiate in brothel-based, street-based prostitution and child victims of sexual exploitation, making the rescue operation a traumatic experience re-enforcing the antagonism towards law enforcement agencies. The process of trafficking includes intermediaries, recruiters, managers and abettors in various stages of trafficking for which they are currently not prosecuted, and victims can be anyone irrespective of sex, age or nationality. It being an organized crime needs pervasive intervention right from counselling the victims for first-hand accounts, psychological study and consideration of their views to effect rehabilitation since the ultimate aim is social integration, whether it’s trafficked victims or voluntary sex worker. The shelter and protective homes prescribed under The Immoral Trafficking Prevention Act (ITPA) do not have adequate facilities to cater to victim’s needs, whereas victims in child care institutions are ousted upon reaching the age of 18, due to the absence of after-care homes. Acknowledging that the victimisation of foreign nationals who are often times prosecuted for visa violations under the Passports Act, 1967 and Foreigners Act, 1946, higher sensitivity is required as presently no such exceptions exist. The Ministry of Home Affairs (MHA) has proceeded to sign MOUs with several countries along with constituting a Regional Task Force and for adopting an SOP by all SAARC members.[2] The Anti-Human Trafficking Unit (AHTU) operates nodal cell at the national level at the MHA, which conducts periodic meetings to monitor implementation, outline various action areas for each State and has also developed a web-portal to enable sharing of information among different agencies and concerned government departments.

During the meetings, the Committee identified and analysed the lacuna in existing statutory regime, among which a few are conspicuous by their absence. None of the laws clearly define “sexual exploitation”, “commercial sexual exploitation (CSE)”[3] while no provision exists for prevention under the ITPA. The rehabilitation process falls far short of requirement in essential fields of continuing education, vocational training, treatment especially the setting-up and management of protection homes. The MHA, other concerned departments such as MWCD, Ministry of Labour and Employment, Ministry of Railways have released advisories and issued SOPs to systemize the tackling of such crimes, which however, have been ineffective `mainly due to absence of co-ordination, accountability, financial resources and dedicated manpower emanating out of lack of knowledge of the ruling provisions and laws. It was observed that law enforcers lose vital clues and information which could be used to convict the perpetrators. The absence of a victim/witness protection protocol exposes them to pressure, exploitation and threats from traffickers forcing them to turn hostile or worse pushing them back into the trade due to lapses in background verification of applicants seeking release of victims. The absence of a single investigating agency along the lines of the Narcotics Control Bureau is a gaping hole in the institutional framework since AHTUs have to rely on existing police for manpower, followed by absence of a separate budget dealing with trafficking. The capacity of judicial system is also found lacking which results in miscarriage of justice.

IMG_4422The Committee culled suggestive changes in legislation regarding the definition and ambit of ‘sexual exploitation’[4], efforts to amend the ITPA as well as accountability by the stakeholders. There should be strict adherence in reporting information as per the pro-forma prescribed to all police stations by the Crime and Criminal Tracking Network and Systems (CCTNS), which should be utilized in mapping vulnerable areas/groups under separate laws such as ITPA, Labour, IPC, and different kinds of trafficking. During rescues operations, differentiation between voluntary sex workers and trafficked persons should be maintained to protect civil and human rights of the former along with right to dignity and access to government programmes as well as proper identification while maintaining confidentiality of victims to prevent re-trafficking or re-establishment of contact by the exploiters. There has been rousing debates regarding the functioning and security at shelter homes. Due to the delicate nature of this organized crime, shelter homes must be guarded, media should not be allowed and strict visitor’s policy must be enforced; attending personnel must be recruited post successful scrutiny of their antecedents and must undergo orientation programmes to assist inmates with compassion and firmness to enable a holistic environment. Infrastructure facilities should resemble a warm welcoming atmosphere with adequate health and medical support inclusive of psychiatric assistance, de-addiction centres, hospitalization facilities, specialized treatment for diseases like AIDS or venereal infections. The physical and mental trauma suffered by most victims requires hands-down caretaking hence in-house counsellors, medical personnel, volunteers should provide life skill training for anger-management, conflict management, socialisation/sexualisation, grooming, self-defence and leadership, and be equipped to handle difficult cases. All manner of sharp objects, hazardous materials and inflammable must be secured to reduce suicide attempts or violent breakouts, which can be helped by making environment more homely with kitchens, lawns, playing areas, open ventilation systems as well as forms of entertainment. Residents should have a participatory role in the running of the shelter homes to effect smooth re-integration into ordinary life schedule. The rehabilitation process should begin with individual attention to each resident documenting their progress for legal purposes too and follow up on their condition for at least 3 years from date of rescue. Systemized vocational training should be imparted as viable skills in response to market demand, employability and aptitude, even to those not residing in the shelter homes for a prolonged period. Shelter Homes should have collaboration with local legal services authority and must be helped by Para Legal Volunteers (PLVs) to assist the victims throughout the course of proceedings till conclusion and to obtain all necessary documents and certificates.[5] Victims should have all information regarding the legal recourse available to them, rehabilitation options and accessible welfare schemes. The prosecutors, judicial officers as well as the judges should be sensitized on how to handle cases of trafficked victims on priority being given to trafficking cases, to exercise vigilance to prevent re-victimization through court processes while exercising caution in releasing the victims through thorough background checks ensuring they go into safe hands without any hurry or urgency to dispense such cases. The Court should refer the victim to DLSA for determination and release of compensation u/s. 357-A of Cr. P.C. Court proceedings in trafficking cases usually run aground due to lack of evidence or victims turning hostile. Video conferencing facilities in the courts can enable them to testify away from the threat of traffickers by putting a Witness/Victim Protection Programme[6] in place applicable across the country. Compensation schemes should benefit the victims of trafficking. Investigation procedures must be remodelled by providing separate budgetary provisions and installing an Organized Crime Investigation Agency. Till such an agency is brought into place, AHTU should be declared as ‘Thana’ for facilitating registration and investigation of cases. Until such suggestions are implemented, the Police should work in close co-ordination with District Task Force for rescue of victims in an organized manner through the entire process of pre, during and post-rescue operations in co-ordination with all the authorities.[7] Ample time must be allowed to the victims to recover from the trauma before recording their statement u/s. 164 Cr. P.C. FIR must be registered after guidance from legal services authorities so that offenders are convicted after trial.

In order to successfully combat the interconnected network of human trafficking, the Committee suggested creation of Nodal Agency, State Agency and District Task Force Agency. At the Centre the Agency should constitute the Chairpersonship of Secretary, MWCD with members from MHA, Ministry of HRD, Labour and Employment, Overseas Indian Affairs, Panchayati Raj, Tribal Affairs, Rural Development, Social Justice and Empowerment, Health, Railways, I & B and national bodies such as NCW, NHRC, NCPCR and NALSA. It shall meet once in three months, to facilitate convergence, intelligence sharing, monitoring compliance, to oversee issues of cross border trafficking, repatriation of foreign nationals and shall also make policies in this regard. The Nodal Agency will receive funds and shall also be releasing funds to the state agencies, AHTUs and the Organised Crime Investigating Agency (when created) to support implementation.  The State Agency shall operate as a bridge between the Nodal Agency and District Task Force, meeting every three months to execute policies, monitor and evaluate the work of DTF and suggest remedial measures as well as review actions taken in response to issue of human trafficking for sexual exploitation. It shall conduct training programmes for police, rescue personnel and staff of shelter homes, affix responsibility when any stakeholder is found wanting in their response and also make suitable record of appreciation for reasons of accountability and better cohesion. It would comprise of Principal Secretary[8], the Principal Secretaries[9], Chairperson or nominee of the SCPCR and that of the State Commission for Women, Chairperson or nominee of SHRC, I.G., Police/Joint Commissioner, In-charge of Anti Human Trafficking, Representative of SLSA and one nominee of the JJ Committee of the High Court, representative of NGOs nominated by the Chief Secretary of the State. The State Agency shall also act as advisor to the DTF and Police.

District Task Force (DTF)

DTF shall cover rural areas, headed by the District Collector or someone of equal rank, with changing membership since being a local level administration; it’s not specifically spelt out.[10] Much like the State Agency it shall record, monitor and implement Nodal Agency’s policy decisions to oversee prevention of trafficking by constituting separate teams with stakeholders having fixed responsibilities and accountability in performing their functions.

The Committee set out a list of illustrative functions for every District to tackle the problem specific to their areas. The majority of suggestions focus on a planned and directed model developed to effectively execute a rescue operation at all stages. Thorough surveillance of vulnerable areas and population should be conducted with the contribution of local authorities, communities, NGOs in field work to draw up an action plan to promote preventive measures and conduct successful rescues by assessing the potential number of victims to be rescued. Information should be dispersed among schools, anganwaris, Sarva Shiksha Abhiyan functionaries, health workers, village sarpanchs etc to keep a close watch on children beneficiaries of government schemes[11] and establish a vigilance network that would aid in the investigation and reporting of missing children and adolescents. A well trained team of rescuers from the police, NGOs/CBOs, doctors/trauma counsellors/mental health professionals, paralegal volunteers/lawyers, should be available to respond appropriately during actual rescue. Post rescue, the victims should immediately be separated from the traffickers, provided medical aid if necessary[12], food, legal assistance from legal services authority or PLVs [13] for drawing up FIRs to record all material facts properly, and produced before the CWCs for appropriate orders to be passed in case of minors. DTF must arrange the meeting with CWC to ensure no further human rights violations, seek orders for age determination and for keeping rescued minors in safe homes. Efforts must be made to recover personal belongings or documents relevant for identification, prosecution, her children, her medicines while maintaining anonymity of the victims such as filing of FIR via NGO/CBO as the complainant and exercising procedural accuracies with respect to male, female and child victims. Rescued victims must be informed of the post rescue protocols to obtain her informed consent in medical examination, HIV screening, admission in shelter homes, provisions for livelihood training including developing entrepreneurial skills while being connected to Government schemes aimed to specially benefit at-risk groups, and accruing civic benefits to them.[14] To facilitate availability of credit to such entrepreneurs, liaisoning must be done with organisations, industries, including under the CSR for providing employment by supporting ventures where victims choose to engage in independent work.  DTF responsible for the safety of rescued victims should ensure confidentiality of shelter homes having efficient infrastructure with a trained staff capable of identifying and addressing sensitive cases with compassion and firmness, such as victims with substance abuse, addiction, mental health problems to be given immediate appropriate treatment. Responding sensitively to the trauma experienced by victims, DTF must coordinate with legal service authorities, foreign countries and other states to facilitate in-camera proceedings, video-conferencing for recording testimonies to reduce exacerbating the trauma and ensure a high conviction rate. DTF should differentiate in the post rescue treatment of adult, mature voluntary sex workers from trafficked victims, extending benefits and effective implementation of government welfare schemes[15] to encourage giving up sex work for reintegration into the society. DTF must make public the positive action and efforts taken by the concerned authorities and assist various line departments in ensuring implementation of awareness generation programmes against trafficking for commercial sexual exploitation for ensuring people’s faith in the system.

Legal Services Authorities apart from providing assistance during the trial stages can also act as social auditors of existing facilities available for rehabilitation of rescued victims of sexual exploitation and trafficking. Their roles can be broadened as below:

  1. Awareness in the community through panel lawyers and PLVs in vulnerable areas
  2. Appointment of dedicated paralegal volunteers to assist survivors as counsels
  3. DLSAs as converging nodes to ensure accrual of schemes by the intended beneficiaries[16]
  4. Steps must be taken to sensitize the corporate world in the field of human trafficking and garner assistance under the head of CSR, while the SLSAs assist in training of stakeholders by collaborating with local educational institutions, civil society organisations and NGOs working in the field.
  5. The Committee  emphasized upon the need of enthusiastically enforcing the government schemes which would automatically reduce trafficking and sexual exploitation of the vulnerable groups owing to added economic and social security. Among the recommendations made to the Supreme Court, for its deliberation a few stood out as under:
  6. The need to define ‘sexual exploitation’, and while issuing directions in the present case consider those given in Budhhadev Karmasker v. State of West Bengal[17] which was a report on the rehabilitation of sex workers submitted by a Committee appointed by the Apex Court.
  7. Appointment of a Committee to look into all SOPs and advisories to develop a short, comprehensive SOP for all stakeholders. Special focus should be given to cases of missing children since it had a strong linkage with trafficking, and must be presumed to be one even when it’s kidnapping.[18]
  8. The Hon’ble Court may issue directions for the setting up of Nodal Agency, State Agency, defining roles and functions of the DTF along with instructions to Legal Services Authorities for effective inclusion of vulnerable populations.
  9. Appointment of a Grievance Redressal Body/Ombudsman to address failure in delivery of justice and recommend penal consequences after affixing responsibility.
  10. Collection of data using CCTNS and resources of AHTU to create a comprehensive source of data on missing children and trafficked persons.
  11. Direction should be passed to deal with trafficking via placement agencies[19] as well as making budgetary provisions to be places with the different authorities to battle the cause, prevent trafficking and aid at the stages of rescue, protection, rehabilitation, repatriation and reintegration.
  12. Issuance of directions to Central Government to set up an Organized Crime Investigation Agency and the constitution of a Committee to work out the modalities of setting up the specialized agency.

Pilot projects must be initiated in 5-6 districts, connecting source and destination states to test the effectiveness of such recommendations in consultation with the MWCD and MHA, to further develop and modify directions for successful implementation of the project in the country.

[1] WCD, NCPCR, NHRC, CFAR, HAQ, Bachpan Bachao Andolan (BBA), SHAKTI VAHINI (NGO),

[2] India ratified the SAARC Convention on Preventing and Combatting Trafficking in Women and Children for Prostitution.

[3]POCSO defines sexual offences and aggravated forms leaving out CSE

[4] “..includes 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 in a sexual manner, for the benefit of another person(s), either through monetary gains, or compensation, or favors, or any other arrangement, causing unlawful gain as a result of such act to any person and includes brokering relationships that are coerced.”

[5] Identity Cards such as Aadhar card, ration card, election card, birth certificate, domicile certificate, caste certificate, school leaving certificate etc.

[6] Along the lines of ‘The Vulnerable Witness Protocol in Delhi’

[7] Immigration Authorities, Border Security Force, Railways and other Transport Authorities etc.

[8] Women and Child Development by whatever nomenclature called locally

[9] Education, Law, Finance, Health, Home Rural & Urban Development, SC/Tribal Affairs, Social Justice

[10] Panchayati Raj functionaries, police officers concerned with AHU, nominees of District Child Protection Units, NGOs including community workers, Directors/Superintendents of Shelter Homes and nominees of DLSA

[11] And collect information on the number of children not availing it as well as the reasons for it.

[12] DTF must ensure District Hospitals have a dedicated ward to deal with emergency medical requirements.

[13] At the time of recording statement under section 164 and during production in Court thereafter.

[14] Women, BPL families, Scheduled Castes/Tribes and backward and minority communities.

[15] ICPS, Kishori Shakti Yojana, Kasturba Gandhi Balika Vidhyalaya, National Child Labour Project and the Swadhar Yojana along with accrual of benefits under the MGNREGA, NRHM and NRLM to counter socio-economic pull of trafficking.

[16] To prevent trafficking and further exploitation of marginalized communities.

[17] AIR 2011 SC 2636

[18] BBA v. Union of India W.P. (C) No. 75/2012.

[19] As per direction of Delhi High Court in Bachpan Bachao & Ors. V. Union of India & Ors. W.P. (Crl) No. 82 of 2009, dated 24.10.2010

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