Roshan Dalvi

1. Human Trafficking Roshan Dalvi

2. The Two Tests • Lesser numbers, Greater attention • At Home • In School • In Countries • In Courts • The 3 Rs • Recognize • Resist • Report The trouble is too many people grow up. They don’t remember what it’s like to be a 12 year old!

3. Vulnerability • Street / homeless • Migrant / missing • Orphaned / abandoned / destitute • Working • Differently abled • HIV / AIDS affected • Substance abuse affected • Beggars • Abused • Trafficked • Children of prostitutes

4. Partners of the System • Parents • Teachers • Friends • NGOs • Medical Officers • Police Officers • Legal Officers • Judicial Officers Awareness creation Attitudinal change Your children will see you by what you live; Than by what you say

5. Destroying psychology Devastating life Bitter shock Disgust Disbelief Suspicion Helplessness Frustration Anxiety Loss of security Feeling of guilt Fear of disclosure Confusion Impact of abuse / violence I hold that the more helpless a creature, the more entitled it is to protection by men, from the cruelty of men – Mahatma Gandhi

6. Causes for trafficking • Population • Poverty • Family size • Vulnerability • Lack of education • Lack of employment opportunities • Lack of care and protection • Low female ratio • Demand + profit • Poor law enforcement

7. Trafficking v/s. migrant smuggling • Trafficking – Forceful movement of women/children for crimes • No consent or choice of the victim • Sale like chattel • Migrant smuggling – Taking victim in expectation of something • Initial consent or choice • Though, on a deception, misrepresentation of facts or misunderstanding of position

8. Sexual v/s. Commercial Exploitation Liberation Is not Deliverance - Victor Hugo • Sexual • Brothels • Pornography • Massage parlours • Bars • Paedophilia • Commercial • Industrial (Labour) • Domestic • Organ removal for transplant • Illegal adoptions • Beggary • Camel racing

9. Legal provisions • International covenants • Universal Declaration of Human Rights • Covenant for the Rights of the Child (CRC) • Convention for Elimination of all kinds of Discrimination Against Women (CEDAW) • Convention on the Elimination of all forms of Racial Discrimination (CERD) • Convention Against Torture and other cruel, inhuman or degrading treatment or punishment (CAT) • International Covenant on Civil & Political Rights (ICCPR) • International Covenant on Economic, Social & Cultural Rights (ICESCR)

10. Legal provisions (Contd…) • National laws • Constitution of India • Indian Penal Code (IPC) • Immoral Traffic Prevention Act (PITA) • Bonded Labour (Prohibition) Act • Domestic Violence Act (DV Act) • Child Labour (Prohibition) Act • Juvenile Justice Act (JJA) • Commission for Protection of Child Rights Act

11. Authorities under PITA • Special Courts (S.22) • Special Police Officers [S.13(1)] • Trafficking Police Officers (CBI) [S.13(4)] • Tourism Police • Correctional Service Officers (S.21) • NGOs

12. Prevention • Poverty alleviation • Population control • Identification of vulnerable people and suspected traffickers at source locations • Vigilance squads on borders, transport locations etc. • Retired Police, military officers to be trained and recruited • Maintenance of database of crimes and criminals and missing persons • Web-based tracking service for missing children • Photographs, finger prints, DNA reports • Stringent Visa requirements

13. Protection • Identity of victims to be protected or changed • Care, support and shelter to be provided to runaway children • Co-ordination amongst police at different levels and jurisdictions • Co-ordination amongst NGOs • NGO/Police partnership • Training of Police, Prosecutors to assist victims • Rehabilitation of victims rather than release or repatriation in the same hands The true test of civilization of a society Is how it treats its victims

14. Prosecution • Surprise raids on brothels / hotels • Proactive intelligence • Police / NGO partnership • Raiders to let the victim collect her child, documents and property • Arrest the brothel keeper / hotel owner / customers • Rescue the child victims • To be produced before CWC under JJ Act • Send the victims for counseling, medical aid, legal aid, shelter before her statement is recorded (never overnight in police station) • Video recording of child interview as well as trafficker interrogation Your Attitude determines your Altitude

15. Prosecution (contd….) • Produce the brothel keeper / hotel owner before Magistrate • Resist their bail application • Constitutional right of the victim • Repetitious nature of the crime • Seal the brothel / hotel • Attach and confiscate other properties of the brothel keeper / hotel owner The crime problem is an overdue debt the society pays For tolerating for years the conditions that breed lawlessness - Earl Warren

16. Accused v/s. Victim Accused Victim Custody Arrest Rescue Stringent Bail Interrogate (by PO) Interview (by Counsellor)

17. The child / victim dilemma • Child v/s. adult syndrome • Child friendly atmosphere • Victim v/s. accused syndrome • Victim representation • Victim support • Victim participation Children are little people Who need big rights - Dr. Klaus Kankel

18. Kinds of victims • Verified minors – below 18 years • Possible minors – might or might not be a minor, but prima facie, a minor • Verified majors – above 18 years Proof of Age: Birth Certificate School Leaving Certificate Medical opinion

19. Re-victimization / Secondary victimization • Police investigation • Medical examination • Court trial Justice without force is powerless; Force without Justice is tyranny.

20. The FEDEF Principle Freedom Equality Dignity Equity Fairness • To repair the damage • To raise their self esteem • To make them live with dignity • To encourage and extract talent • To realise their potential • To know their worth • To learn to earn and earn to learn Give them not the fish; But the rod so they can fish

21. Requirements of the Criminal Justice System • Infrastructure • Victim Support Centres • Victim Examination Suites • Video recording of statements • Video recording of evidence • Interpretation • Sensitivity • Court climate • Court room conduct Mankind owes to the child The best it has to give

22. Stages requiring sensitivity • The stage of bail • Hearing the victim, the accused and the State • The stage of evidence • Recording of evidence • Appreciation of evidence • Decision • Sentencing • Fine • Compensation • Rehabilitation To pardon the oppressor, is to deal harshly with the oppressed. Law cannot prevent what it cannot punish

23. Judicial Sensitivity • Court Climate • Special Courts / Officers • Priority in disposal • Fixed dates / time • Victim support & representation • Contact with Court officials • No contact with accused The Child shows the Man As Morning shows the Day - John Milton

24. Judicial Sensitivity • Courtroom Conduct • Evidence in Chambers • Specific place for all • Victim Confidentiality • Recording of evidence • Rest time Cure the disease and kill the patient ?

25. Action required-in cases of sex trafficking • Prioritize the issue • Institutionalize the issue • Provision of manpower • Strengthen support centres • Post rescue effort • Mahila Shishu Desk in all Police Stations • Provision and sharing of databases (of the traffickers and the trafficked / accused and victims) • FIR for all Missing Persons • Description and photograph of missing persons • Mutual sharing by regional and bilateral co-operation • Educational programmes on Human Rights • Active participation of survivors

26. Action required – in cases of forced labour • Strengthen the law and policy framework • Manuals, circulars, practice directions • Co-ordination between Government, Trade Unions and Employers • Monitor Recruitment and Employment Agencies • Value oriented education • School and University levels • Rejection of products and services of forced labour • Ethical trade practices • Fast Track Courts • Education and rehabilitation of victims Stand up and be counted

27. Action required – in cases of Detenus/Complainants • Frame-up • Torture in Lock-up • Call upon the officer to explain • Separate police force to help the Courts (investigation of Investigation Officers) • Refusal to record FIR • Complain to Senior Officer/Court • File private complaint • On-line complaints • Tanta-Mukti Gaon Yojana (Police to go to houses, inquire and settle disputes)

28. Need of the hour • Synergy of all stakeholders • Teachers / Community • Police / Panchayat • NGOs • Prosecution • Governement • CWC • Women & Child department • Social Welfare, Labour, Education department • Media • Artists / Artisans • Corporates / Industrialists • Youth • Inter-religious forums • Judiciary

29. Judgments in Trafficking cases • Prerna v/s.St. of Mah (2003 2 MLJ 105) • Gaurav Jain v/s. UoI (1996 10 SCC 550) • Delhi Domestic Workers v/s. UoI (1995 1 SCC 14) • St. of Mah v/s. Tapas Neogi (1999 7 SCC 685, 695) • Bandhua Mukti Morcha v/s. UoI (A 1984 SC 802 • M.C.Mehta v/s St.of TN (1996 6 SCC 756)

30. Recommendations for future Legislature • Prostitutes / sex workers = victims • “Rescue” not “round up” or “arrest” victims • Deletion of s. 8 (PITA), s.110 (BPA) • Legal aid for victims • Anonymity for the victim • Publicity for the accused / trafficker The concept of fairness to the accused must not be stretched till it is narrowed to a filament – Justice Benjamin Cardozo, US Supreme Court

31. Recommendations for future (Contd…) Executive • Shelter homes for victims (counseling / interviewing / rehabilitation / protection measures) • Child friendly video recording of interviews • The object is to reduce repetition of narration of events • Risk assessment for welfare of the victims • Drawings of profiles of victims and traffickers and computerising them • Rehabilitation – shelter, education, employment • Victim / Witness Protection groups • Para-legal training preparatory for trials • Custody for the accused (interrogation) • Networking with NGOs, forensic officers, legal experts

32. Recommendations for future (Contd…) Executive • Surveillance between two countries - (CBI) • Conspirators, Abettors, Financiers, Transporters • Mapping of victims and accused • Identifying trafficking route and patrolling it – e.g. coastal patrolling in Sri Lanka, use of ex-trafficked in Nepal • No Push-back Policy • Database of NGO Police partnerships by parent body like the UN • Repatriation only after assured safety • MOU with border states • Collaboration with NGOs • Inter-departmental working group

33. Recommendations for future (Contd..) Judiciary • Application of CRC (Art. 34, 35 & 39) • Age verification • Possible minority – ex-facie • Proved minority - Birth certificate • Bail - as exception not the rule • Repetitious nature of crime • Intimidation upon victims • Constitutional right of victims • NGO/Social worker list in Magistrates Courts [sec.17(5) PITA] • Action u/s.18 (PITA) – sealing of property • Remand in-camera / in chamber • Victim representation by NGO (emotional support)

34. Recommendations for future (Contd..) • Confiscate sealed / attached properties (Criminal Law Amendment Ordinance, 1944) • Presumptive evidence (s.114(a) Evidence Act) • Video recording of interview to be used as examination-in-chief • Cross examination • By CCTV / in-camera, in chamber (no confrontation with accused) • Not by accused in person • Not direct to victim, questions through Judge or intermediary • Deterrent punishment (sentencing, heavy fines / compensation) • Rehabilitation Punishment should be like death - which spares no one

35. The way forward…… To institutionalize Standard Operating Procedures • Prevention • Effective policing for preventive strategy at the source area • Assignment of police to specialized work • Separate investigation and Law & Order • Adequate number of police officers • State level prioritizing • Prioritize districts and police stations • Training • Of all stakeholders separately and together • NGOs, media, Lawyers, PPs, Police, Judges • External evaluation • Human Trafficking Unit monitored by District Judge • Victim protection and compensation • E.g. in A.P., Victim is paid Rs.10,000/- to start life afresh

36. The way forward……(Contd..) • Accountability • Reward for good work – punishment for negligence/dereliction • Amendments to the ITPA for effective legal action • Provisions regarding investigation – e.g., Sec.164 statements of victims and others • ITPA / relevant IPC provisions to be made non-bailable • More stringent punishment • Rehabilitation • NGOs to be given a sum as soon as rescue is carried out • To provide economic rehabilitation

37. The Action Plan • Brain-storming not brain-washing • Organise against crime because it is an organised crime • Each one of us needs to be responsive and responsible • Go and make the world a better place! If you want Peace, work for Justice

38. 2 views • Criminalise • Abolish brothels • De-criminalise • Legalise / license / regulate prostitution (right to life – freedom of profession) • Better conditions • Minors excepted The doors of prison Swing both ways

39. Success Stories Sri Lanka • Stringent punishment • 38 / 42 years to paedophiles • Heavy fine / compensation • No extradition or repatriation • Result • Crime not worth the money • Traffickers emigrated to India India • Bhakti Ram Pandey, the only trafficker convicted since 2001 • Declared assets were Rs.5.5 crores • Trafficked an estimated 200 girls per year Be cruel to be kind

40. Failure Stories • Nepal • Protection only for unmarried women (Trafficker claimed to be her husband) • India • Sec. 8A of ITPA • Sec. 110 of BP Act Women victims treated as accused Fined / taken in custody – no legal aid / no bail Traffickers bailed out Women if bailed, re-trafficked Experience is a bad teacher; It gives tests first and lessons afterwards.

41. Holistic Approach Ignorance Denial Partial acceptance Information Action Solution