1.1 DEFINITION OF TRAFFICKING India became a signatory in 2002 to the United Nations Protocol to prevent, suppress and punish trafficking in persons, especially of women and children and has adopted its definition of trafficking (MOWCD and UNODC, 2008). The UN protocol, also known as the Palermo Trafficking Protocol, defines trafficking as follows:
a. 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 should 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, harboring 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 less than eighteen years of age (United Nations, 2000). While this is the most well-known and widely adopted definition of trafficking, representing a broad international consensus (Megumi, 2009), it has been found to be too broad-based and lacking in definitional clarity. There has been debate, for example, on whether the focus of trafficking must be on the movement of the trafficked victims, both within and outside the country, and the process of recruitment or whether the focus should be on only the exploitation that occurs at the end (International Labour Organization [ILO], 2009).
1.2 MAGNITUDE OF TRAFFICKING
The global report on human trafficking by the United Nations Office on Drugs and Crime (UNODC) shows that 76 percent of 12 million detected victims of trafficking for forced labour, bonded labour or commercial sexual exploitation (CSE) in 2009 were women and minor girls (UNODC, 2012). It shows that trafficking for sexual exploitation was the most prevalent form of exploitation and accounted for 57–62 percent of the detected victims of trafficking from 2007 to 2010 (UNODC, 2012). Estimate based on studies across a number of countries indicates that 20–40 percent of females engaged in commercial sex (CS) entered this field as adolescents at a median age of 16 years (Silverman, 2011). The prevalence of trafficking victims in the world is 1.8 per thousand populations and the prevalence of trafficking victims in Asia and the Pacific is 3 per thousand populations (Trafficking in Person Report, 2010). Around 43% of trafficked persons are used for commercial sexual exploitation of which 98 percent are women and girls (ILO, 2007).
India has been identified as a source, destination and transit location for trafficking of women and minor girls for CSE and forced labour (USDOS, 2012). In 2011, it was ranked seventh out of 196 countries in the Trafficking Index in terms of risk for trafficking, where it was grouped with countries that were identified as being at extreme risk for trafficking (Warhurst et al., 2011).
India is an origin for women and girls trafficked to other countries in Asia, the Middle East and the West. India is also a destination country for Nepali and Bangladeshi women and girls trafficked for the purpose of sexual exploitation. About 50,000 women and children are trafficked into the country annually from neighboring states like Bangladesh and Nepal for the sex trade. The open/porous borders between the countries, such as that between India and Bangladesh, allow traffickers to cross over with relative ease. The country also serves as a transit point for Bangladeshi girls and women trafficked for sexual exploitation to Pakistan. However, Ninety percent of trafficking in India is internal- most of the trafficking in India occurs across states (interstate) or locations within a State (intrastate). Accurate data on trafficking for sexual exploitation in general and of minor girls in particular are not available because of the clandestine nature of the trade, and estimates on its magnitude vary. A survey conducted by the National Commission for Women in 2009 revealed that the trafficking of women and children for commercial sexual exploitation took place in 378 districts – accounting for roughly 62% of the total number of districts in India. The Government of India reports that approximately 3 million women 3 and minor girls are in commercial sex in the country and minor girls constitute 40 percent of this number (Ministry of Women and Child Development [MOWCD] and UNODC, 2008). Of the 3 million sex workers, 90% or more are estimated as in-country and 5 to 10% cross-border trafficking mainly from Bangladesh and Nepal.
Trafficking from neighboring countries accounts for only 10 percent of the coerced migration in India, with approximately 2.17 per cent from Bangladesh and 2.6 per cent being from Nepal. The share of interstate trafficking is estimated at 89 per cent (ADB 2002). Various studies provide details about the internal trafficking routes in India. Andhra Pradesh, Bihar, Karnataka, Madhya Pradesh, Rajasthan, West Bengal, Uttar Pradesh, Jharkhand, and Maharashtra appear to be the main States from where trafficked persons are sourced, with the metro cities being the most frequent destination points. Prime destinations for both Indian and foreign female trafficking victims include Kolkata, Mumbai, Delhi, Gujarat, Hyderabad, and along the India-Nepal border.
According to NHRC Report on Trafficking in Women and Children, the population of women and children in sex work in India is stated to be between 70,000 and 1 million of these 30% are 20 years of age. Nearly 15% began sex work when they were below 15 and 25% entered between 15 and 18 years (Mukherjee & Das 1996). There are reports of continuous rise in the numbers of missing children, most of them being girls, many of whom are feared to have become victims of trafficking. On an average 44,000 children are reported missing; of them as many as 11,000 remain untraced according to a report by the National Human Rights Commission of India. The actual numbers are much higher as hardly 10% of all cases are registered with the police.
Sex trafficking in girl children represents the ultimate violation of human rights and child rights. They are deprived of their basic natural right to grow and develop physically and mentally. These trafficked girls are subjected to torture emotional, physical and sexual. Perversions and exploitations meted out to the trafficked girl children by multiple abusers often make them highly susceptible to serious health hazards, including high risk of contracting HIV/AIDS at a very early age.
The National Crime Records Bureau (NCRB) of the Indian Ministry of Home Affair is a source of data that shows the number of cases registered under the ITPA and various sections of the IPC relating to human trafficking. The NCRB collects data under the following heads of crime which are related to human trafficking: i) Importation of girls from foreign country (Sec. 366B IPC); ii) 4 Procuration of minor girls (section 366A IPC); iii) Buying of minors for prostitution (section 373 IPC) iv)Selling of minors for prostitution (Section 372 IPC); v) Immoral Traffic (Prevention) Act 1956; and vi) Human Trafficking (section 370 & 370A IPC), A total of 6877cases of crime relating to human trafficking were registered in the country during the year 2015as compared to 5466 cases during the year 2014, showing an increase of 25.8% during 2015 over 2014. A total of 3,517cases were registered in 2011, which rose to 3,554 cases in 2012, to 3,940 cases in 2013, to 5,466 cases in 2014 and to 6877 cases in 2015. The crime under human trafficking during the year 2015 has increased by 95.5% over 2011.
Under importation of Girls from Foreign Country, a total of 6 cases were registered during 2015 compared to 13 cases in 2014. West Bengal reported the highest no. of 4 cases. Under the Immoral Traffic (Prevention) Act, 1956, 2641 cases were registered during the year 2015 compared 2617 in the previous year. The highest 511 cases were registered in Tamil Nadu. As many as 3087 cases under Procuration of Minor Girls were reported during the year 2015 as compared to 2020 cases in the previous year. The highest 1,303 cases were reported in Assam followed by West Bengal (1,003 cases). Only 7 cases of buying of minor for prostitution were reported during the year 2015 in comparison to 14 the previous year. The highest 7 cases was reported in Maharashtra. A total of 111 cases of selling of minors for prostitution were registered in the country during 2015 as against 82 such cases in 2014, thus indicating an increase of 35.4% during 2015 over 2014. West Bengal has reported 91 such cases accounting for 82.0% of total such cases registered during 2015. A total of 1,021 cases of human trafficking under section 370 & 370A of IPC were registered in the country during 2015 showing an increase of 41.8% over previous year (720 cases). Telangana reported 226 such cases followed by Assam with 137 cases and Jharkhand (126 cases), However, maximum numbers of victims (620 persons) under human trafficking (sec. 370 & 370A IPC) were recovered/reported in Kerala during 2015.
1.3 PURPOSE, PROCESS AND CONSEQUENCES OF TRAFFICKING:
Trafficking in women and children takes place for the purpose of exploitation which in general could be categorized as sexual and non-sexual. The former category includes trafficking for prostitution, Commercial sexual abuse, Paedophilia, Pornography, Cyber sex, and different types of disguised sexual exploitation that takes place in some of the massage parlours, beauty parlours, bars, residential flats and other manifestations like call girl racket, friends clubs, etc. Non-sex based 5 trafficking could be for different types of servitude, like domestic labour, industrial labour, adoption, organ transplant, camel racing, marriage etc. But the growing traffic in women and children is principally for the purpose of sexual exploitation. while the methods used for trafficking such as coercion, duping, luring, fake marriage, abducting, kidnapping etc. are commonly cited, it is the social and economic constraints of the victims that make them most vulnerable.
Globally, the UNODC report finds that traffickers tended to be adult males and nationals of the country in which they operate. Information from more than 50 countries between 2007 and 2010 shows that of the persons prosecuted for and/or convicted for trafficking in persons, two-thirds were men (UNODC, 2012). In India, the situation is different, as about half of all traffickers were female, and many of these were formerly trafficked victims themselves (Sen and Nair, 2004). In India, studies of traffickers have suffered setbacks by difficulties encountered in identifying these individuals and obtaining their consent for interviews (Sen and Nair, 2004). Although a few studies have collected information directly from traffickers themselves (Sen and Nair, 2004), information in most of the studies is from interviews with women engaged in commercial sex or those who have been rescued (ICRW, 2010; Terre des Hommes, 2005).These different sources confirm that trafficking is an organized crime that usually involves more than one person. The NHRC study describes the trafficker as a key link in a chain comprising many players and describes the trafficker hierarchy as consisting of several tiers: (a) master trafficker-cum-kingpin; (b) primary trafficker-cum-procurers; (c) secondary traffickers; and (d) spotters or a grassroots chain of intelligence gatherers. Survivors of CSE have corroborated the involvement of several people in the trafficking process. They reported the presence of at least three to four people, such as an initial procurer, a secondary procurer, a transporter and, lastly, the brothel owner (Sen and Nair, 2004). The traffickers can be strangers or those who are related to or acquainted with the trafficked women and minor girls. Findings also reveal that female traffickers were usually victims of CSE themselves, and many of them were older women who had lost their business in brothels. Recruitment strategies included promises of well-paying jobs, marriage and shelter, declaration of love and kidnapping or abduction with or without the use of drugs or force.
Sex trafficking establishments are found moving from more traditional locations such as brothels in densely populated urban areas to locations such as to residential areas in cities. Traffickers are increasingly better organized and adapting to government crackdowns on well-known establishments or routes of human trafficking.
Most of the trafficking in India is from the most disadvantaged social strata- lowest caste Dalits, members of tribal communities and religious minorities.
Trafficking between Indian States is rising due to increased mobility, rapid urbanization, and industrial growth. There are increasing reports of women and girls from eastern and northeastern states being sold or coerced into forced marriages in states with low female-to-male gender ratios, including Haryana and Punjab, some of whom are subsequently forced into prostitution. Trafficking in persons, particularly women and children is an organized crime that gravely violates basic human rights of the victims. It violates the rights and dignity of individuals in several waysviolation of individual’s right to life, dignity, security, privacy, health, education and redress of grievances. They are subjected to physical violence and sexual abuse, and are held under duress against their will receiving low or no wages. This combined with indebtedness to the trafficker keeps them in a situation of debt bondage and slavery. They are forced to work for long hours in inhuman working conditions leaving little time for rest. They live in conditions of physical confinement similar to imprisonment and have little or no control over their own movement. They are subjected to poor living conditions with abysmal hygiene and sanitation facilities with restricted access to health or medical facilities. They face social stigma and social ostracism in their daily lives and as a result undergo constant humiliation. They are exposed to drugs, liquor and other addictions, and sometimes forcibly made addicts in order to ensure their continued dependence on the trafficker. Apart from continuous assault on their physical, psychological and emotional health; they face health risks such as physical injury, STD, HIV/AIDS, unwanted pregnancies, repeated abortions, gynecological diseases, tuberculosis, and other disease. They also face harassment and humiliation from the police and prosecution. When they are no longer in a position to earn, they are abandoned and even the families who lived off their earnings do not support them.
1.4 DETERMINANTS OF TRAFFICKING:
Trafficking is a multidimensional problem encompassing a whole range of economical, social and cultural issues, which are varied and highly complex. Most of the victims have been trafficked with promises of jobs, better career prospects and marriage. Some are abducted forcibly. Some girls are often sold by friends or relatives, sometimes even by their own parents out of desperation.
Trafficking and sexual exploitation of women /children is directly related to the overall status of women/children in the society. Though poverty is the major factor, the underlying gender based 7 discrimination, male dominance in societal structure are also contributing at large for the dehumanization, commoditization and exploitation of women. Growth of sex tourism, entertainment industry, pornography in print, electronic and cyber media, weakening of the family structure, changing social and family scenario, changing public attitudes towards sex and morality are the other important determinants. In fact, lack of education, caste, ethnicity and social marginalization are major causes for human trafficking. Environmental hazards such as floods and draughts and the impact of globalization resulting in the disappearance of traditional modes of subsistence are a few causes of human trafficking. Women and girls are trafficked within the country for the purposes of forced marriage especially in those areas where the sex ratio is highly skewed in favor of men. An increasing number of girls trafficked from poorer states such as Assam, Odisha, Jharkand and West Bengal are duped with promises of well-paid employment in large cities and then forced into prostitution or forced into marriage in Haryana and Punjab.
Trafficking and CSE are a part of a ‘demand’ and ‘supply’ chain. Sex trafficking is a highrewarding, low-risk criminal activity (Hodge and Lietz, 2007). While poverty may provide an overarching context for sex trafficking, it is the existence of criminal networks that manipulate push and pull factors of recruitment and trafficking of women and minor girls. The ‘supply’ factors that encourage trafficking are poverty and the compulsions to earn a living or help support the family; lack of education and training which prevent access to economic resources; manmade conflict and natural disasters that devastate local economies; inimical cultural attitudes towards children and girls; and inadequate local laws and their poor enforcement. The factors contributing to the growing demand for women and children in the sex work could be linked with ‘sex tourism’ and the demand for sex with young and minor girls. The high profitability of this low-risk criminal activity also plays a role. Insufficient or inadequate laws, poor enforcement, minimal chances of prosecution and conviction, corruption and complacency, low priority given to the issue, failure of governments to enact strong laws, implement policies and provide adequate rehabilitation services for victims- all play a role in perpetuating trafficking (Phinney, 2001; UNDP, 2002).
1.5 DEMAND SIDE OF TRAFFICKING
The male demand for commercial sex has been considered to be the most immediate cause of trafficking in women and minor girls (Gupta and Sinha, 2007). Three levels of demand in sex trafficking are articulated in the literature on trafficking for CSE: (a) demand from those who 8 employ women and minor girls in CS (brothel owners and managers, for example); (b) demand from clients; and (c) demand from third parties involved in the process like recruiters, agents, transporters and others (ILO, 2006). Poverty might be a supply-side factor that induces multitudes of women and minor girls to migrate and seek employment in unregulated sectors, where they become further vulnerable to exploitation. A supply of such women and minor girls who are easily available at low cost fuels a level of demand that would not have existed if they had not been so easily available (ILO, 2006). Some experts in this area believe, however, that the commercial sex industry in India is mostly demand driven, where even if the supply of women and minor girls who are at risk of being trafficked is depleted in particular source sites, traffickers and other parties who profit from commercial sex procure minor girls and women from other regions of the country, as there is a constant demand for commercial sex (Gupta and Sinha, 2007). While it is the demand for women and minor girls that fuels the practice of trafficking them for CSE, a variety of supply-side factors also play a role, and the interplay between demand- and supply-side factors makes it difficult to isolate factors that cause trafficking (ILO, 2006).
1.6 IMPLICATIONS OF TRAFFICKING
While trafficking has severe implications on the psycho-social and economic well-being of the victim, highly adverse ramifications are also seen on the society and the nation. All trafficked children suffer isolation from family and community, fear and psychological trauma, physical and emotional harm, loss of childhood and education. The situation of trafficked minor girls is specifically marked by the risk of pregnancy, early motherhood and reproductive illnesses. In addition it leads to stigmatization and rejection by their families and communities. In the worst cases, it can be responsible for death or can permanently damage his/her physical and mental health. Trafficked victims are also often deprived of food and access to health services in addition to suffering the consequences of inadequate accommodation, sleep and free movement. The psychological impact of isolation and domination on victim is grave and is aggravated by the fact that the victim is relocated to a place where she is condemned to silence and subordination. Abused and exploited victims, particularly being forced into commercial sex, may also be subdued with drugs and become both ill and dependent. A growing concern is that trafficking has an adverse impact on the victims from problem of HIV/AIDS angle too. Some studies have revealed that the longer the confinement in brothels, the greater is the probability of the victims contracting 9 HIV/AIDS due to multiple sex partners, sex violence and poor negotiation for safe sex with use of condom. The country has to incur huge costs for health and rehabilitation.
1.7 NATIONAL / INTERNATIONAL LAWS AGAINST TRAFFICKING
India has a fairly wide framework of laws enacted by the Parliament as well as some State legislatures, apart from provisions of the Constitution which is the basic law of the country. Article 23 of the Constitution Guarantees right against exploitation; prohibits trafficking in human beings and forced labour and makes their practice punishable under the law. Indian Penal Code, 1860 has provisions relevant to trafficking: Section 366A – procurator of a minor girl (below 18 years of age) from one part of the country to the other is punishable; Section 366B – importation of a girl below 21 years of age is punishable. Immoral Traffic (Prevention) Act, (ITPA) 1956 renamed as such by drastic amendments to the Suppression of Immoral Traffic in Women and Girls Act, 1956 (SITA) deals exclusively with trafficking. The objective is to inhibit trafficking in women and girls for the purpose of prostitution as an organized means of living. The offences specified include procuring persons for prostitution, detaining a person in premises where prostitution is carried on, seducing or soliciting for prostitution, living on the earnings of prostitution, seduction of a person in custody, keeping a brothel or allowing premises to be used as a brothel etc. Juvenile Justice (Care and Protection of Children) Act, 2000 enacted in consonance with the Convention on the Rights of the Child (CRC), consolidates and amends the law relating to juveniles in conflict with law and to children in need of care and protection. The law is especially relevant to children who are vulnerable and are therefore likely to be inducted into trafficking. Information Technology Act, 2000 Penalizes publication or transmission in electronic form of any material which is lascivious or appeals to prurient interest or if its effect is such as to tend to deprive and corrupt persons to read, see or hear the matter contained or embodied therein. The law has relevance to addressing the problem of pornography. Goa Children’s Act, 2003 defines trafficking: every type of sexual exploitation is included in the definition of sexual assault; responsibility of ensuring safety of children in hotel premises is assigned to the owner and manager of the establishment; photo studios are required to periodically report to the police that they have not sought obscene photographs of children; and stringent control measures established to regulate access of children to pornographic materials. Karnataka Devadasi (Prohibition of Dedication) Act, 1982 declared unlawful the act of dedication of girls to temples for the ultimate purpose of engaging them in prostitution is. Andhra Pradesh Devadasi (Prohibiting Dedication) Act, 1989 stipulates penalty of imprisonment for three 10 years and fine in respect of anyone, who performs, promotes, abets or takes part in Devadasi dedication Ceremony.
1.8 LEGAL FRAMEWORK
A variety of international instruments that address trafficking already exist. The most important International Conventions regarding trafficking of children are: the Convention on the Elimination of All forms of Discrimination against Women, (CEDAW) 1979; the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children; Declaration on social and legal principles relating to the Protection and Welfare of Children with special reference to Foster Placement and Adoption Nationally and Internationally; the Convention on Suppression of Trafficking in Persons and the Prostitution of others; the Convention on the Rights of the Child, 1989; the Platform for Action of the Fourth World Conference on Women and the Beijing Platform of Action, 1995; the Declaration and Agenda for Action Adopted by World Congress Against Commercial Sexual Exploitation of Children held at Stockholm in 1996; the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, 2000; Second World Congress against Commercial Sexual Exploitation of Children held at Yokohama, Japan 2001 to review developments as a follow-up process to strengthen the commitment to protect children from sexual exploitation; and abuse and the SAARC Convention on Regional Arrangement for the Promotion of Child Welfare, 2002.
International human rights instruments impose duty upon the States to respect and ensure respect for Human Rights Law, including the duty to prevent and investigate violations, to take appropriate actions against the violators and to afford remedies and recovery to those who have been injured as a consequence of such violations. A few States have fulfilled their obligation to implement these commitments or to provide adequate human rights protection to trafficked persons. The Government of India has incorporated most of the standards of international law into its domestic law but it still needs improvement in order to comply with international conventions. However, the deficiency lies not in the absence of good laws but in their lack of implementation.
The United States Department of State, 2013 Trafficking in Persons Report – India, 19 June 2013 observed as follows. The Government of India does not fully comply with the minimum standards for the elimination of trafficking; however, it is making significant efforts to do so. In April 2013, the government amended the penal code in a manner that greatly improves the country’s laws, 11 broadening the types of crimes considered to be trafficking and establishing more stringent sentences for traffickers. The Ministry of Home Affairs (MHA) continued to establish Anti-Human Trafficking Units (AHTUs), which were responsible for combining law enforcement and rehabilitation efforts. ….. In many areas, protection services provided by the government were inadequate. The complicity of some government officials in human trafficking remained a serious and unaddressed problem which impeded efforts to adequately fight the crime. A variety of sources noted the Indian central government approached human trafficking in an uncoordinated, piecemeal fashion, it’s prioritization of anti-trafficking efforts decreased over the year, and some officials’ inertia and indifference impeded efforts.
1.9 GOVT. RESPONSE TO TRAFFICKING
Substantial efforts have been made in the last decade or so in the area of Anti-Human Trafficking by government institutions/state machinery, the civil society organizations, the judiciary and the law enforcement authorities. Drawing strength from the Constitution of India where trafficking in persons is prohibited under Article 23 (1), the mandate for prevention and combating trafficking in persons has received significant attention from the Government. In view of the multi-faceted issues associated with trafficking, the task and responsibility to fight this crime cut across different Ministries /Departments and also State Governments as the subject of trafficking falls within the purview of both the Centre and State mandates. The Ministry of Women and Child Development (MWCD), Government of India, is the nodal Ministry, which deals with the subject of prevention of trafficking in women and children for commercial sexual exploitation. In its efforts, MWCD works very closely with the Ministry of Home Affairs (MHA), Ministry of External Affairs (MEA) and the Ministry of Labour and Employment.
Law enforcement is primarily a state subject. However, the Ministry of Home Affairs deals with all the matters related to Law Enforcement, especially the provisions of The Immoral Traffic (Prevention) Act (ITPA) and specific provisions of the Indian Penal Code (IPC). In addition, the MHA has under its aegis, special enforcement agencies such as Central Bureau of Investigation (CBI), Border Security Force (BSF), and the National Bureau for Crime Records, which compiles crime statistics. The Ministry of External Affairs handles issues related to International Treaties and Protocols dealing with trafficking, and also the care and support to victims of trafficking across borders. The Ministry of Labour and Employment focuses on all matters related to the enforcement 12 of labour laws, and rehabilitation and repatriation of child labour. The Government of India has built strong linkages and partnerships with various stakeholders including Civil Society, NGOs, Corporate Sector, International Organizations etc, in all its endeavors to build an integrated response to prevent and combat trafficking in persons, especially of women and girl children. As the problems related to trafficking are varied, a multi-pronged holistic approach has been adopted to prevent and combat this evil. These include: legislations, law enforcement, special measures for prevention of trafficking, rescue, rehabilitation and reintegration of victims and repatriation of cross-border trafficking victim
1.10 PROSTITUTION NOT SAME AS TRAFFICKING
It is held that decriminalizing sex work in India would place women in a better position. In 2009, the Supreme Court had suggested that prostitution be made legal. The National Commission for Women supported regulation of prostitution to stop trafficking, especially of children and to help improving the squalid conditions in which the clients and workers operated and to reduce the spread of HIV-AIDS. The sex workers wished to be accorded legal status. The benefits of legalizing prostitution and regulation of sex industry were that legalization would stop sex trafficking; control the sex industry; decrease clandestine, hidden, illegal and street prostitution; protect the women in prostitution; promote women’s health and recognize prostitution as an economic activity enabling women to obtain working permits as sex workers. Some were against giving legal status to prostitution on the ground that with greater demand for sex, the amount of trafficking would only increase.
The Immoral Traffic (Prevention) Act is the main statute dealing with sex trafficking in India which does not criminalize prostitution or prostitutes per se, but mostly punishes acts by third parties facilitating prostitution like brothel keeping, living off earnings and procuring women and girls. The Acts punishable under ITPA include: brothel keeping (Section 3); living on earnings of sex work (Section 4); Procuring, inducing or detaining for prostitution (Section 5 & 6). Penalties are higher where offences involve children (<16 yrs) & minors (< 18 yrs); prostitution in areas notified by police & near public places (Section 7) and Soliciting (Section 8). Section 8 punishes a sex worker drawing attention of potential customers from a visible, conspicuous site, whether in a street or private dwelling. All offences are cognizable i.e police do not require a warrant to arrest or search.
The definition of prostitution is limited to exchange of money for sex which is acceptable but organized prostitution that include pimping, brothel-keeping and soliciting sex in public is criminal and illegal. The Immoral Trafficking Act makes it legal for a woman to voluntarily use her body to earn money for self. She is allowed to operate in private in her premises but she cannot publicize and organize her profession and carry out her business in the open. Even though exchange of sex for money is permissible on an individual capacity, a woman cannot do it in within a span of 200 yards of a public place. Locations such as places of worship, hostels, educational institutions, and hospitals are regarded as public places. In the same vein, call girls are not allowed to make their phone numbers public. They can be imprisoned for a maximum of 6 months along with financial penalties if they are caught doing so. Clients who consort with prostitutes or indulge in such activities within 200 yards of a designated area can be imprisoned for a maximum of 3 months and they need to pay fines for the same as well. In case, someone indulges in such activities with someone under 18 years old, he or she can be jailed for 7-10 years. Pimps and similar people who live from the income made by a prostitute are guilty as well. Sex workers are not within the ambit of normal labour laws. However, they have all the rights that would be enjoyed by a citizen and are entitled to be rescued and rehabilitated if they want to do so.
The ITPA does not criminalize prostitution but prohibits all the activities surrounding it. Indian Law doesn’t allow anyone to run a brothel. So if anyone runs a brothel or allows brothel running in a premises owned by him/her, he or she is surely inviting penal action. The law also criminalizes pimping. So if anyone is acting as a pimp to get customers for a prostitute, he/she will be punished. People who run trafficking businesses such as brothel-keepers and landlords are liable to be prosecuted. In case of the first offence they will be imprisoned for a maximum of 3 years. In case they forcibly keep someone in their brothel to be used as a prostitute or exploited for sexual purposes, they can be jailed for a minimum of 7 years. This law also forbids prostitution in hotels. People involved in human trafficking or trying to recruit someone – either forcibly or willingly – are liable to be jailed for 3-7 years.
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