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Human Trafficking. Roshan Dalvi. 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!. Vulnerability.
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Human Trafficking Roshan Dalvi
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!
Vulnerability • Street / homeless • Migrant / missing • Orphaned / abandoned / destitute • Working • Differently abled • HIV / AIDS affected • Substance abuse affected • Beggars • Abused • Trafficked • Children of prostitutes
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
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
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
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
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
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)
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
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
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
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
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
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
Accused v/s. Victim Accused Victim Custody Arrest Rescue Stringent Bail Interrogate (by PO) Interview (by Counsellor)
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
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
Re-victimization / Secondary victimization • Police investigation • Medical examination • Court trial Justice without force is powerless; Force without Justice is tyranny.
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
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
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
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
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 ?
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
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
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)
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
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)
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
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
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
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)
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
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
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
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
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
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
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.
Holistic Approach Ignorance Denial Partial acceptance Information Action Solution