NEXUS BETWEEN CHILD TRAFFICKING AND ORGANISED CRIME: LEGAL ISSUES AND CHALLENGES IN INDIA

- Zubair Ahmed Khan

Child Trafiking

Published On - October 21, 2017 [Vol. 7, Jul - Dec, 2017]

Abstract

The crime of trafficking in persons is carried out by different types of traffickers, ranging from individuals exploiting their partner to organized criminal groups operating across national borders. Trafficking in persons is usually thought of as a transnational organized crime. Child trafficking can be easily conducted by single individuals with a limited organization in place. But trafficking operations can also be complex and involve many offenders, which is often the case for trans-regional trafficking flows. Trafficking is almost always a form of organized crime and should be dealt with using criminal powers to investigate and prosecute offenders for trafficking and any other criminal activities in which they engage. Trafficked persons should also be seen as victims of crime. The most common purposes for child trafficking are sexual exploitation, forced labor, begging, child pornography, drug distribution and armed conflict. There is a need to take a more holistic and partnership approach to tackling the problem. Improving international cooperation and coordination, particularly in relation to developing information exchange and operational cooperation between law enforcement agencies needs to be strengthened.

Keywords: child trafficking, sexual exploitation, prostitution, organized crime, slavery.

1. Introduction

Commercial exploitation and oppression of human beings is a flourishing & profitable trade for many organized criminal gangs at a large scale. It has been understood that trafficking is a multidimensional problem where every step was done in a confided manner. The word traffic itself means something, which has been moved or relocated from one place to another place secretly and in violation of law for vicious purpose. There are various types of trafficking namely, arms trafficking, drugs trafficking, organs trafficking and human trafficking. Due to its hidden character, it is part of an informal commercial sector where it is difficult to ascertain the gravity & multilayer consequence of trafficking. It is also difficult to recognize the victims and problems affecting victims. That is why it is considered as blatant infringement of basic natural rights of humans in its worst nature having far-reaching effect.

Today trafficking of human beings particularly include migration & displacement of vulnerable children & women. This movement can be feasible from one city to various cities or one country to another country across border legally or illegally. So this operation can be executed with or without proper documentation to an unknown locality. It is clear that proper analysis is required to understand the objective, design & framework of human trafficking. So precision over mode of operation, ultimate purpose such as pre-concerted plan or activity, deceptive method adopted to allure victims, etc. are required to fill the criterion for a proper definition of human trafficking.

United Nation introduced a protocol on human trafficking in the year 2000, which was enforced in 2003 in continuation & addition to United Nations Convention against Transnational Organized Crime. It has been realized the necessity of compendious strategy to counter strongly against trafficking, safeguarding the rights of victims and penalizing traffickers. As per the interpretation of UN Protocol, the definition of trafficking of persons is inclusive in nature. There are three aspects of trafficking as mentioned in Article 3 of the Protocol[1]:

(i) Recruitment of person which clearly indicates an organized hiring& commissioning of vulnerable persons (victims) by misusing & adopting oppressive methods for subjugation and slavery.

(ii) Transportation & transfer of persons is something where transit of persons is done from one place to another in a meticulous & clandestine manner.

(iii) Another facet of trafficking can be feasible in the form of sale & purchase of persons through harboring where far-reaching element of bondage, hardship, coercive labour, sexual brutality & violence and other sorts of victimization would exist.

It is important to observe that definition reflect that traffickers adopt certain features of intimidation, arm-twisting skills, domination over vulnerable persons by abuse of power, forcefully carrying off someone strategically or other fraudulent practices to suppress & subjugate over them. It is also clear that it is such a menacing & repressing act in which the matter of acquiescence of victim is irrelevant & immaterial because of the age and social vulnerabilities. It is true the definition of child trafficking is multifarious & convoluted in nature due to which it is not easy to follow the same in practical scenario.  There is no doubt about the fact it is a very heinous crime but it is strenuous task to demarcate & identify between a victim of child trafficking and a child who suffered from multiple facet of serious abuse & exploitation. This dichotomization is important so that information related to exploitation & oppression occurred by illegal migration & shifting from one place to another can be collected and victim can be identified. Otherwise it will be difficult task for investigation authorities dealing in such matters and even anti-human trafficking cell. It seems to be necessary to create a standard & uniform mechanism for identifying those children who are either real victims or survivors of such heinous facet of exploitation.

2. Relationship between organized crime and child trafficking

The major question is how child trafficking and organized crime is inter-connected and what are the repercussions of such a complex linkage? There are three obvious facts which cannot be denied i.e, trafficking (child) is profitable business, trafficking is generally executed in a surreptitious manner so as to accomplish the purpose without any doubt and it is such kind of criminal activity where number of criminals are involved. So it is clear that this is handiwork of organized criminal group. An organized crime is not specifically defined in any international convention.  It has been understood as one illegal activity or number of illegal activities done by unlawful criminal association to get illegal profit. The United Nation convention against transnational organized crime defined organized criminal group as a congregated group or gang having sufficient members in an orderly manner that are involved in or committed heinous crime so as to get pecuniary or non-pecuniary benefit.[2]

These criminal groups can be called as gangs, criminal squads, criminal conglomerates, and syndicates because of their nature & character to execute particular tasks. The main objective of such groups is to get maximum profit from its business activities and to expand their business from one city to another city or from one to country to another country. Their success depends upon various factors like its institutional skeleton, specific delegation of roles & assignments among members, cohesive & stable nature of membership of such gang, hierarchical pattern, magnitude & severe imprint of such gang by use of extensive violence and deterrent reverberation within society. Due to its secret functional style of such criminal groups, it has become a great challenge for law enforcement agencies.

It is an undeniable fact that these organized criminal groups are trained & experienced in their criminal activity. So traffickers also execute their whole business very smartly. They choose particular direction & area of trafficking (for example sexual trafficking, prostitution, slavery) and assign particular roles to their members for completing recruitment task, payment for sale & purchase, transportation task (from deciding destination place to arranging fake passport for victims if required).  In the whole process, they may take the help of other accomplice or even public officers to complete their specific task. It is also not necessary that those associates or public servants or any common man have any specific knowledge about trafficking of victims (children). So, it means that these traffickers (criminal groups) generally don’t reveal any specific information about their business to anyone. Their secretive nature also shows that they don’t put any reliance upon anyone or it may also indicate that they don’t want to take any risk by sharing or leaking any information regarding their business. Obviously, wherever these types of systematic arrangement are made, it will also encourage corruption and laundering of illicit money.

Sometimes traffickers also have to arrange temporary abode and travel arrangement for their associates & victims. It was often found that hotel owners, landlords, travel agencies knowingly or unknowingly provide support to the traffickers. It is not always necessary that these criminal groups would only involve in child trafficking. There is possibility that other criminal acts are also committed along with child trafficking. For example, kidnapping, extortion, maiming child for begging or any sort of bribery racketeering, associated drug trafficking, laundering of illegal money, forgery of official documents, abetting & facilitating prostitution and any other type of sexual exploitation at large level. [3]

So pecuniary benefits may not be sole objective of such criminal groups.  It is also possible trafficking can be done for enslavement or sex racket. In fact these days there are certain criminal groups who are well-acquainted with modern technology and misuse of the same. Cyber crimes especially in context of child pornography or any kind of online child abuse are evolving very fast in the electronic world in the form cross-border transmission.

3. Causes of child trafficking

The complicated problem of child trafficking is outcome of composite factors including poverty of the family, extreme hardship due to lack of bare resources, beggary, dearth of necessary economic opportunities, illiteracy, intense gender prejudice & discrimination, migration. Unemployment of parents, illness, death and other unanticipated compelling situations are also aggravated factors behind child trafficking. One common thing needs to be noticed that child trafficking are often stimulated & facilitated initially by family, friends, relatives and known persons. Traffickers also get undue advantage in those situations when there is absence of law related to child trafficking, absence of strict policy on child protection or rehabilitation of trafficking victims, ambiguity & limitations with respect to powers of law enforcement agencies and government apathy.

Since trafficking is not only subject matter of domestic legislations but international issues are also attracted due to its global expansion in trafficking market.  There are many countries where trafficking are very common. It has been understood that traffickers (criminal groups) are generally looking for those countries which are economically weak, politically inept and unbridled corruption combined with poverty for creating their base.  They adopt push & pull theory in which vulnerable victims (children) are pushed away from their family either by kidnapping or by paying some money to poor parents of the victim from a relatively poor country. These children (victims) are often pulled into those big cities or countries which are financially sound but have uncontrolled crime rate & having demand of cheap labour leading illegal migration, child smuggling as well as trafficking for further exploitation. Sometimes parents of victims (children) are often promised, convinced & allured of better life and relatively good economic opportunity aboard without intimating about nuances of trafficking like sexual exploitation, slavery, & child labour, etc. Criminal groups (traffickers) take advantage of their ignorance, economic circumstances and overall vulnerabilities due to weak social fabric. Corruptive measures like bribery to local officials in facilitating valid travel documents, border security officers is highly encouraged and promoted by these criminal groups instead of using threat, violence or any sort of physical brutality. [4]

There are many repercussions & evil consequences of child trafficking. It disturb physical & psychological status of victims (children) in a such way that there is less possibility of rehabilitation into normal social life. Apprehension of being arrested & ignorance factor become a serious matter of concern of these trafficked victims.

4. International perspective

Before introduction of Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others was introduced by United Nation and came into force in 1951.[5]

 This is the first convention which discussed about trafficking though no proper definition is mentioned in the convention. In fact this convention is particularly targeted upon exploitation & oppression by prostitution via trafficking. The convention puts responsibility on the contracting party (country) to make certain policies and   prevent cross-border trafficking via railway stations, transportation through air & sea.[6] Countries should also make necessary policies and guidelines in the interest of victims of trafficking like repatriation, etc.[7]

Convention on the Rights of the Child is another convention, which specifically dealt with physical security of child directly & indirectly related to trafficking. The convention put strict obligation upon countries to create a strong framework and policy related to safety & protection against sexual exploitation, brutality and other forms of child abuse including misuse through pornography.[8]

The convention emphasizes on countries to actively engage in bilateral as well as multilateral agreements so as to protect children against kidnapping, sale & purchase, cross border trafficking and any sort of trafficking for different illicit purpose.[9]

Similarly, the Optional Protocol on the Rights of the Child on the sale of children, child prostitution and child pornography was introduced in year 2002 to tackle the issue of cross border trafficking of children especially with the aim to prevent buying & selling of children, prostitution of child and pornography & sexual representation of child. Countries should ensure such criminal acts with description, be included in national penal legislation and culpability liability to be imposed against such offenders. Countries should introduce legal provision to secure the procedure of adoption in the respective legislation in compliance with international law.[10]  Convention on the Elimination for All Forms of Discrimination Against Women also directed contracting countries to make specific policies and legislative provisions to suppress & subdue all sorts of trafficking including sexual exploitation related to prostitution for the protection and safety of women.[11]

SAARC (South Asian Association for Regional Cooperation) describe the malice practice of women & child trafficking as blatant violation of fundamental human rights. So, the association introduced a convention with an objective to prevent trafficking, punish traffickers and reformation & scope of repatriation for victims. It is important for countries to scrutinize the participation & machination of such organized criminals who engage in trafficking.[12] Countries should provide penal measures for such offenders who directly or indirectly participate in the trafficking business.[13]

5. Legal perspective of child trafficking in India

The problem of child trafficking is not any recent phenomenon. The very basis of anti-trafficking of persons is mentioned in Article 23 of the Constitution of India under the right against exploitation. Trafficking of human beings and coerced labour must be prohibited by the State by introducing in the form of an offence.[14] In fact the state must make policy to stop abuse of children[15] and ensure that children should live with dignity against all sorts of exploitation.[16]

India signed Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime in December 2002. Interestingly, India ratified the Convention and its protocol after almost 9 years i.e on 5th May 2011.[17]

Finally, trafficking of persons is categorically explained under Indian penal code where any action of trafficking is categorically executed by intimidation, coercion or any other deceptive means. The specific provision explain the gravity of offence by providing penal measures depends on number of victims involved, repetition of such act, execution of such act in collaboration with public servants or police officers.[18]

Indian legal system stands for eradication & penalization a system of forced labour.[19] On the other hand, recent amendment brought in the Child Labour (Prohibition and Regulation) Amendment Act, 2016 provide the scope of child labour in family  house and  as an artiest in entertainment industry.[20] It raises a sense of insecurity and vulnerability as safety measures are not specifically mentioned in this regard as their exploitation is left on the discretion of employer, which is grey area of concern.

In fact the scope of law related to immoral traffic (prevention) is very limited. The legislation provides punishment of traffickers[21] and someone who facilitates brothel.[22] Protective homes are also provided as institution for victims for their rehabilitation and reformation.[23] But the legislation doesn’t explain specifically any strong measures or strategy related to prevention of trafficking. There is another limitation where no interpretation is given with regard to main cause of trafficking to identify the source & contention. It is also not clear how protective homes can be efficient for those victims are very badly affected physically & psychologically since childhood. These are some critical matters that are still left out as per the interpretation of legislation.

6. Conclusion

Lastly, it has become important now to define organized crime in the context of child trafficking. There are ample number of legislation in the interest and security of children. But, the problem of trafficking has not come to an end mainly because of pre-concerted plan executed by criminals.  Government has to adopt a dexterous strategy and multi-dimensional bulwark against every possible step of trafficking. Certain issues like technology upgrades, anti-corruption legislations, training of officials of anti-trafficking cell needs to be improvised strictly on priority basis. Establishment of protective homes won’t be efficient until & unless proper scheme of rehabilitation and reinstatement should be implemented for the welfare of children. The problem of cross-border trafficking needs to be tackled with strong inter-state cooperation and multilateral agreements. The provision of extradition and policy of information exchange among states should be specifically introduced in criminal procedural law so law enforcement agencies can do fair and prompt investigation. Physical and psychological state of victims of trafficking can be prospered & ameliorated through tenet of social assimilation & social integration.  Social outreach programmes and awareness campaign should be organized at a large scale in the societal interest of children. It is also important to introduce victim protection scheme and provision under special anti-trafficking law.

[1] Article 3(a), Use of terms, Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, ,  United Nations Convention against Transnational Organized Crime and the Protocols thereto, United Nation Office on Drugs and Crime, available at : https://www.unodc.org/documents/treaties/UNTOC/Publications/TOC%20Convention/TOCebook-e.pdf

[2] Article 2(a), Use of terms, United Nations Convention against  Transnational Organized Crime, Annex I, United Nations, available at : https://www.unodc.org/documents/treaties/UNTOC/Publications/TOC%20Convention/TOCebook-e.pdf( last visited on 7th March,2017)

[3] Syndicated: Organized Crime and Human Trafficking, The Trafficking Research Project, A Contribution to the Global Dialogue on Human Trafficking, available: https://thetraffickingresearchproject.wordpress.com/2013/07/26/syndicated-organized-crime-and-human-trafficking/(last visited on 7th March,2017).

[4]Context of Trafficking, pg112,Globalization and Human Trafficking,2007, Jones, David W.Engstrom, Tricia Hilliard, Mariel Diaz, The Journal of Sociology & Social Welfare, Vol.34,Issue 2 ,June 2007.available at: http://scholarworks.wmich.edu/cgi/viewcontent.cgi?article=3252&context=jssw

[5] Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, United Nations Treaty Collection, available at: https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=VII-11-a&chapter=7&clang=_en(last visited on 8th March 2017).

[6] Article 17, Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, available at: http://www.ohchr.org/EN/ProfessionalInterest/Pages/TrafficInPersons.aspx(last available at: 8th March 2017).

[7] Article 19, Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, available at: http://www.ohchr.org/EN/ProfessionalInterest/Pages/TrafficInPersons.aspx(last available at: 8th March 2017).

[8] Article 34, Convention on the Rights of the Child, United Nations, available at: http://www.ohchr.org/EN/ProfessionalInterest/Pages/CRC.aspx(last visited on 8th March,2017).

[9] Article 35, Convention on the Rights of the Child, United Nations, available at: http://www.ohchr.org/EN/ProfessionalInterest/Pages/CRC.aspx(last visited on 8th March,2017).

[10] Article 3, Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography, United Nations, available at: http://www.ohchr.org/EN/ProfessionalInterest/Pages/OPSCCRC.aspx(last visited on 8th March,2017).

[11] Article 6, Prostitution, Convention on the Elimination for All Forms of Discrimination Against Women, United Nations, available at: http://www.un.org/womenwatch/daw/cedaw/text/econvention.htm#article6(last visited on 8th March,2017)

[12] Article IV, Aggravating Circumstances, Offences, SAARC convention on preventing and combating trafficking in women and children for prostitution, SAARC, available at: http://www.saarc-sec.org/userfiles/conv-traffiking.pdf(last visited on 8th March,2017).

[13] Article III, Offences, SAARC convention on preventing and combating trafficking in women and children for prostitution, SAARC, available at: http://www.saarc-sec.org/userfiles/conv-traffiking.pdf(last visited on 8th March,2017).

[14] Article 23, Prohibition of traffic in human beings and forced labour., Right against Expolitation, Fumdamental Rights, Part III, The Constitution of India, available at :http://lawmin.nic.in/olwing/coi/coi-english/coi-4March2016.pdf(last visited on 8th March,2017)

[15] Article 39(e),Certain principles of policy to be followed by the State, Directive Principles of Ste Polciy, Part IV, The Constitution of India, available at; http://lawmin.nic.in/olwing/coi/coi-english/coi-4March2016.pdf(last visited on 8th March,2017).

[16] Article 39(e),Certain principles of policy to be followed by the State, Directive Principles of Ste Polciy, Part IV, The Constitution of India, available at; http://lawmin.nic.in/olwing/coi/coi-english/coi-4March2016.pdf(last visited on 8th March,2017).

[17]UN Trafficking Protocol, Current Status, UNITED NATIONS TREATY COLLECTION,

http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-12-a&chapter=18〈=en (last visited Mar.10, 2017).

[18] Section 370, Trafficking of  person, The Criminal Law (Amendment) Ordinance, 2013, Ministry of Law and Justice, The Gazette of India, available at: http://lawmin.nic.in/ld/ord_criminal_law.pdf

[19] Section 4, Abolition of Bonded Labour System, The Bonded Labour System( Abolition) Act,1976, available at: http://www.childlineindia.org.in/CP-CR-Downloads/Bonded%20Labour%20System%20(Abolition)%20Act%201976%20and%20Rules.pdf(last visited on 8th March,2017).

[20] Section 3 ,Prohibition of employment of children in any occupation and process, The Child Labour( Prohibition and Regulation) Amendment Act, 2016, Ministry of Law and Justice, available at: http://labour.gov.in/sites/default/files/THE%20CHILD%20LABOUR%20%28PROHIBITION%20AND%20REGULATION%29%20AMENDMENT%20ACT%2C%202016_0.pdf(last visited on 8th march,2017)

[21] Section 5B,Punishment for Trafficking in Persons, The Immoral Traffic (Prevention) Amendment Bill, 2006, available at: http://wcd.nic.in/sites/default/files/640ls.pdf(last visited on 8th March,2017).

[22] Section 3,Punishment for keeping a brothel or allowing premises to be used as a brothel,The Immoral Traffic (Prevention) Act, 1956.

[23]Section 21, Protective Homes, The Immoral Traffic (Prevention) Act, 1956.

About The Writer

Article Author Image

Zubair Ahmed Khan

Assistant Professor, University School of Law & Legal Studies, Guru Gobind Singh Indraprastha University, New Delhi, India.

B.ALLB (hons.) from Faculty of Law, Jamia Millia Islamia, LLM (specialisation in IPR and Business law) from Indian Law Institute, New Delhi. Member of All India Law Teachers Congress, Indian Institute of Public Administration.

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