CHILD TRAFFICKING AND SEXUAL ABUSE OF WOMEN- A CRITICAL ANALYSIS BY- ABHISHEK RAJ & RIYA KUMARI
Child Trafficking And
Sexual Abuse Of Women- A Critical Analysis
Authored By- Abhishek Raj & Riya
Kumari
Amity Institute Of Advance Legal
Studies,
Amity University, Noida Up
ABSTRACT
The
Indian Constitution expressly prohibits human trafficking. Article 23 of the
constitution's Fundamental Rights
section forbids "human trafficking and other comparable types of forced labour." Because there is no clear
definition of trafficking, it might be stated that trafficking always entails the movement or
transportation of a person by force or deception, followed by exploitation and commercialization. Abusers, such as
traffickers, recruiters, transporters, vendors, purchasers, end-users, and so on, take advantage
of the vulnerable trafficked individual. With globalisation,
human trafficking has increased dramatically. WHEREAS,
Sexual
harassment in the workplace is an extension of daily violence and is unequal
and exploitative since it impacts
women's right to life and livelihood. It is a breach of a woman's fundamental rights to equality under
Articles 14 and 15, as well as her liberty to live with respect under Article
21 of the Indian Constitution. On July
9, 1993, India signed the Convention
on the Elimination of All Forms of Discrimination Against Women (CEDAW). After the savage gang rape of Bhanwari
Devi, a social worker from Rajasthan, a petition was brought in India's Supreme Court for the first time in 1997 to
defend fundamental human rights of
working women. In addition to the Vishaka recommendations in the case of
Vishaka & Ors. v. State of
Rajasthan, the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 (hereafter referred to as the
POSH Act) was passed. The study critically
examines the current Sexual Harassment statute in India. Every parties' support and dedication are
required for the law to work properly
and successfully.
WHAT EXACTLY
IS CHILD TRAFFICKING?
Any individual under the age of 18 who is solicited, transferred,
transported, or received for the
purpose of exploitation, whether within or outside of a nation, is considered a
victim of child trafficking.
According to the National Crime Records Bureau (NCRB), there have been several examples of children just
disappearing overnight, with one occurring every eight minutes. In India, a considerable number of children are
trafficked for a variety of purposes, including
begging, forced labour, and sexual exploitation. The amount of child trafficking
in India has grown over the previous
decade, while specific figures are still unknown. . It is one of the most profitable illicit trades
carried out by highly organised criminals. Poverty, a lack of jobs or education, the disintegration
of social systems, and other factors contribute to child trafficking. It causes victims' physical and emotional
exploitation, and as a result, they are unable to live a healthy and stable life. Human trafficking, particularly of women and children,
has become a major national and worldwide problem. Women and children have been exposed to unparalleled vulnerabilities, resulting in a vast organised
crime and multimillion-dollar enterprise today.
HUMAN RIGHTS
OF TRAFFICKED CHILDREN
The United Nations and the Universal Declaration of Human Rights indicate that the rights are universal and apply to everyone, regardless of caste, gender, colour, ethnic origin, or other factors. Even though they are not in their own country, trafficked individuals are entitled
to the entire spectrum of human rights. According to international law,
trafficking individuals cannot be discriminated against solely because
they are non-nationals. International human law extends to everyone inside a State's
territory or authority, regardless of
nationality or citizenship or how they
arrived there. Persons involved in specialised trafficking are susceptible to or may be
able to claim extra rights. For example, whenever it comes to child trafficking, international law on human rights
puts significant and extra duties on
states. On December 12, 2002, the Indian government signed the Trafficking Protocol. This is a significant step
forward in the advancement of trafficked people's human rights since it not only prevents
and safeguards victims
of trafficking but also punishes
traffickers.
INDIA'S ANTI-TRAFFICKING LAWS
The Indian
Constitution
The Indian constitution expressly outlaws human trafficking and forced
labour, and both violations are
penalised under Article 23(1) of the
Indian Constitution. Article 23(1) states that
"traffic in humans and beggars, as well as other comparable types of forced
labour, are banned, and any
violation of this article shall be penalised in accordance with law."
The Indian Criminal Code of 1860
The India Criminal Code, 1860, has many laws concerning child
trafficking. For example, criminal
penalties for abduction, buying or selling a minor for prostitute, abduction
(even for the purpose of forcing
marriage), illegal forced labour, importing/procuring girls, and purchasing or selling a person for slavery.
1956 Immoral Traffic Prevention Act
It is the primary legal tool addressing human trafficking. The
Legislation focuses on human trafficking
for prostitution. The primary goal has been to eliminate trafficking of women
and girl child for the reason of engaging in prostitution as an organised
means of subsistence.
The 1976 Child Labour (Prohibition and Regulation) Act
This
Act forbids the child labour in the specified occupations listed in Part A of
the Act's schedule. According to the
Act, no youngster may labour for more than 3 hours without a break of at least one hour.
The Goa Children Act of 2003
This Act has the following features:
1. For the very first time in Indian law, trafficking was granted a legal definition.
2. The concept
of sexual assault
was broadened to include all forms of sexual exploitation.
3. The photo studios are obligated to report to the police on a regular
basis that they have not taken any indecent images of
youngsters.
INDIA'S CURRENT
TRAFFICKING STATUS
Comprehensive statistics on the level of human trafficking in India is
difficult to get. It is widely known that India is a primary source, destination, and transit point for human trafficking, especially the trafficking of young girls. According to the End of Child Prostitution
in Asian Tourism (ECPAT), 150,000
women & children are smuggled from South Asia each year, with the majority
coming from, passing through, or going to India. Figures for Nepal and Bangladesh vary from 500 to 10,000 girls
trafficked to India each year; another
estimate puts the total at more than 200,000 during a seven-year period. There
are currently no rules restricting
the repatriation of trafficking victims from India to Bangladesh and Nepal, and concerned groups have
attempted to help girls in reaching their homes by coordinating with partner
organisations in these countries.
According
to India's National Crime Records Bureau (NCRB), 65,038 children went missing in the
country in 2012.
Yet,
official authorities' capacity to quantify the scope of child trafficking is
restricted, and their estimations
fall well short of those of researchers and activists. Human trafficking has made India a destination, as well as an
origin and transit point. Due to increased trans-border migration, there has been a continuous increase in the
trafficking of children from the country for the past two decades.
WHAT EXACTLY
IS SEXUAL HARASSMENT?
As a result of the rising prominence of this issue, S. 354A was
introduced to the IPC by way of the
Criminal Law (Amendment) Act, 2013, which enumerates the conduct that
constitute sexual harassment
offences. Physical contact and approaches including unwanted and explicit sexual solicitations; or a demand or
solicitation for sexual favours; or exhibiting pornography against
a woman's will; or making sexually charged remarks
There
were previously no equivalent laws in the Indian Criminal Code that could be
used. To deal with such offences, the Indian Criminal
Code included three sections: S. 94, 354, and
509. Yet, these linked regulations are presented as both an offence that
either amounts to public obscenity or
behaviours that are seen to offend women's modesty. Although Section 294 IPC applies both for men and women,
the subsequent two are geared exclusively for
women.
CONSTITUTIONAL PROTECTIONS AGAINST SEXUAL HARRASMENT AT THE WORK PLACE
Article
19(1) of the Indian Constitution secures and guarantees every citizen the right
"to practise any profession, or
to carry on any employment, trade, or business" (g). Every woman has a fundamental right to engage in public employment, which is violated
by sexual harassment, forcing her to avoid such job. Sexual harassment of women at work exposes them to significant danger and hazard,
putting them in an inequitable situation in comparison to other employees, and has a negative impact on their capacity to exercise their constitutionally granted right under Article 19(1).
(g).
Sexual
harassment of women at work also violates the right to life and personal
liberty, as stated in Article 21,
which states that no one should be deprived of his life or personal liberty. The right to subsistence is an essential
part of the fundamental right to life.
Sexual
harassment is a violation of one's right to a living. According to Article 21
of the Indian Constitution, every
woman has the right to be free of impediments and gender discrimination in order to live a
meaningful life. Because the 'Right to Work' is dependent on the availability of a safe working
environment and the right to live a dignified
life, the dangers created
by sexual harassment must be addressed for these rights
to be meaningful.
The
preamble to India's Constitution states that it would ensure "equality of status and opportunity" to all people.
Sexual harassment undermines this fundamental goal of
the constitution's founders.
The
notion of gender equality enshrined in our Constitution would be rendered
ineffectual if a woman's right to
privacy is not recognised as a right to life and liberty protected by Article
21 of the Indian Constitution.
Since
sexual harassment of women at work destroys their sense of respect and their
ability to make a living with
dignity, it is a violation of their
fundamental rights and basic human rights.
SEXUAL HARASSMENT LEGISLATION DEVELOPMENT IN INDIA
The Vishaka Decision
The Supreme Court of India acknowledged workplace sexual harassment for
the first time in its historic
decision Vishaka & Ors vs State Of Rajasthan & Ors . Vishaka and other
women's organisations launched a
Public Interest Lawsuit against the State of Rajasthan and the Union of India to defend the basic rights of working women guaranteed by Articles
14, 19, and 21 of the Indian Constitution. The suit was brought in response to
the savage gang rape of Bhanwari
Devi, a social worker in Rajasthan, for opposing a child marriage. The Supreme Court of India established legally
enforceable rules based on the right to equality and dignity guaranteed by the Indian Constitution and
the United Nations Convention on the Elimination of All Forms of
Discrimination Against Women (CEDAW)
The Guidelines laid down are as follows:
a.
"It shall be the obligation of the employer
or other responsible individuals in workplaces or other institutions to avoid or deter the commission of sexual harassment acts and to establish processes
for the resolution, settlement, or prosecution of sexual harassment acts by taking all necessary efforts."
b.
Sexual harassment includes the following unwelcome
sexually determined behaviour (whether directly
or indirectly):
·
physical contact and advances;
·
a demand or request for sexual favours;
·
sexually-coloured remarks;
·
showing pornography; and
·
any other unwelcome
sexually determined physical,
verbal, or nonverbal
conduct.
c.
All employers or those in control of workplaces, whether
public or private, should take
proper efforts to avoid sexual harassment. Without limiting the scope of this commitment, they shall take the following
steps:
· The express
prohibitions of sexual harassment in the workplace, as established above, shall be reported, publicised, and distributed in suitable manner.
· Government
and public sector entities' rules/regulations on conduct and discipline shall include rules/regulations
against sexual harassment and provide for suitable
punishments against the perpetrator.
d.
In the case of private employers, efforts should be
taken to add the aforementioned restrictions in the Industrial Employment (Standing Rules) Act, 1946.
e.
Adequate work conditions in terms of work, leisure, health, and hygiene
shall be given to further guarantee
that there is no hostile
atmosphere for women at workplaces and that no woman has
reasonable reasons to feel she is hampered in
association with her employment.
DEVELOPMENTS IN THE AFTERMATH
OF VISHAKA
The
Central Civil Services (Conduct) Rules
1964130 were revised in 1998 to
include r.3C, which forbids sexual
harassment of working women, in response to the Vishaka decision. After Vishaka,
the first case before the
Supreme Court in this regard was Apparel Export Promotion Council v. A.K Chopra. In this case, the Supreme Court supported the removal of a higher official of the Delhi-based
Apparel Export Promotion Council who
was found guilty of sexually harassing a junior female employee at work. In this decision, the Supreme Court broadened the meaning of sexual harassment by declaring that
physical interaction was not required for an act of sexual harassment to be committed.
Furthermore,
in its decision in Medha Kotwal Lele & Ors. V. Union of India & Ors., the Supreme Court took cognizance and began
monitoring the implementation of the Vishaka
Guidelines across the country by directing State Governments to file affidavits emphasising the steps they had taken to implement the Vishaka
Guidelines. Not satisfied, it
instructed states to put in place adequate measures to guarantee the Vishaka
Guidelines' effective implementation.
Lastly, the Supreme Court stated that if the Guidelines are not followed,
the aggrieved parties may file a complaint with the appropriate High Court.
The complaints committee's report will be considered an enquiry report under
those guidelines. In response to this directive, the Central Government (Department of Personnel and Training) revised the
Central Civil Services (Clasification, Control, and Appeal) Regulations, 1965, R. 14, sub-r. (2) to include
the required clause.
AMENDMENT IN IPC POST NIRBHAYA CASE IN 2013
·
Section 354A. -Sexual
harassment
·
Section 354B.
Compelling a woman to undress
·
Section 354C. Seeing
or photographing a lady
without her consent
(voyeurism).
·
Section
354D. Following a lady and contacting or attempting to contact her despite her express request not to be
contacted. Surveillance of a lady via the internet or any other type
of electronic communication (stalking).
CONCLUSION
Women and child trafficking is a severe problem that impacts millions of
people worldwide, with sexual
exploitation being one of the most frequent kinds of exploitation. Trafficking
is the hiring, transportation, transfer,
sheltering, or receiving
of people for the purpose
of exploiting by threat, use of
force, or other types of coercion, fraud, or abuse of authority. Because of their economic, social,
and political standing,
women & children
are particularly at risk of trafficking.
Sexual
exploitation is a typical kind of exploitation for trafficked women
and children. Victims are frequently compelled to engage in prostitution or other types of sexual exploitation, such as pornography, strip clubs, or forced marriages.
Traffickers employ a range of tactics
to entice and abuse women and children.
They frequently deceive
victims by promising bogus employment, education, or a better quality of life, and then compel them into
prostitution or other types of sexual exploitation. Traffickers also employ violence, intimidation, and
compulsion to manipulate and control their victims, making escape harder. To tackle this problem, governments,
international organisations, and civil
society must collaborate to increase awareness about human trafficking and
reinforce laws and policies that
safeguard women and children. It is also critical to offer victims with support services like as counselling, medical
treatment, and legal representation.
Education and economic development are also important
in the prevention of human trafficking.
Women and children who have access to education and economic possibilities have a lower risk of becoming victims of
human trafficking. Moreover, addressing the core causes of trafficking, such as poverty, injustice, and
gender-based violence, is critical to ensuring a long-term solution
to this problem.
In
general, combatting women and child trafficking, especially sexual abuse,
necessitates a multidimensional
approach that includes prevention, protection, and punishment. Prioritizing the protection of vulnerable populations
and promoting a future where all people can live free from exploitation and abuse are critical.