Indo-Nepal Human Trafficking Post Earthquake Perspective; Concerns and Challenges

Compiled by Dinbandhu Vats Edited by Ajay K. Jha Indo-Nepal Human Trafficking Post Earthquake Perspective; Concerns and Challenges Compiled by Dinbandhu Vats Edited by Ajay K. Jha

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August 2015

Cover picture & layout by Rajneesh Shrivastava Published by PAIRVI, G-30, First Floor, Lajpat Nagar-III, New delhi - 110024 Contact: 011-29841266, 65151897 | email: [email protected] website: www.pairvi.org s Nepal begins to recover from its deadliest disaster, the Acountry’s youngest survivors are now at a higher risk for another calamity of getting sold into the human trafficking trade. The two earthquakes that rocked Nepal on April 25 andMay 12, 2015 killed over 8,500 people and caused extensive loss to swathes of countryside in Bihar, Uttar Pradesh, and Bengal that borders Nepal.1 According to the Nepal government, the tiny Himalayan country stares at losses estimated at about 10 billion US dollar— nearly half of its gross domestic product of 19.64 billion US dollar.2 The United Nations estimates that 2.8 million people have been displaced after the earthquake and its aftershocks flattened their homes.3 Women have been disproportionately affected by disasters and the social breakdown that accompanies calamities has made them vulnerable to sexual abuse. Children need more than just material and physical relief after such an event. Confronted with scenes of destruction and death, many children have developed post-traumatic stress disorder. Left untreated, they could be prone to lasting psychological damage and emotional distress. Human trafficking is reportedly rising post earthquake along the -Nepal border and unsuspecting Nepalese minors are being sold in various big cities of India under the pretext of providing jobs.4 Traffickers often pose as recruiters, offering non- existent jobs to desperate young women and girls, whose plight has become worse after the earthquake. Where promise of jobs

Indo-Nepal Human Trafficking: A Challenge; Post Earthquake Perspective 1 doesn’t work, fake marriage proposals are floated to entice young girls and their parents and ultimately force them in the flesh trade.5 Children who lost their parents and children of parents who have lost their jobs in the disasters are prone to this bait of traffickers. Similar fears reportedly came true after the 2013 floods in and to date there are no reports on what happened to those children who lost their families.6 Several internal human trafficking cases were reported after natural tragedies in recent years, including the 2001 Bhuj earthquake, the 2004 tsunami and the 2008 Kosi floods.7

Increased Risks of Trafficking Around 15,000 girls from Nepal are trafficked for sex trade in Asian countries each year, according to a UN estimate. Violence against women is also a real and present danger. The United Nations Population Fund (UNFP) claims that more than 28,000 women may be at risk of gender-based violence in the aftermath of the earthquake.8 There are now fears that camps for those displaced by the earthquake are being targeted. The problem of trafficking is sadly not new in Nepal.A UNICEF report found the number of women and children trafficked in year 2014 had risen by 60 per cent, compared to the previous year.9 US Department of State has classified Nepal as a Tier 2 country, meaning the government does not fully comply with the minimum standards of Trafficking Victims Protection Act’s (TVPA) but is making significant efforts to do 10 so. The Nepal Government had banned children below 16 years of age from travelling outside their home district without a parent or

2 Indo-Nepal Human Trafficking: A Challenge; Post Earthquake Perspective other adult approved by the district child welfare board in May 2015.11 However, its impact is doubtful particularly when the traffickers are mostly known and are in relation to the victims.

Risk of Child Marriage after Nepal Quake The massive earthquake in Nepal has also raises chances of spurt in child marriages as a disguise for the trafficking. According to CREHPA, a Nepalese group, which campaigns against child marriage, since there is risk of sexual assault on girls living in tents in Kathmandu after the quake, the families would be encouraged to marry off their daughters.12 Girls also may be married off because their parents have been killed, their families can no longer afford to keep them in school or because their schools were destroyed. More than 200 schools have been destroyed.13 Nepal already has a high level of child marriage with one in 10 girls married by the age of 15 and four in 10 before their 18th birthday, according to UN estimates. The rate is particularly high (75 percent) in the southern region bordering India. Child marriage in Nepal is driven mostly by poverty and parents’ desire to protect girls but is aggravated by the dowry system. The older a girl gets the more dowry parents have to pay for her. Poor families marry off girls young so they don’t have to pay a high dowry.14

Cross Border Scenario The border between India and Nepal is 1,088 miles (1,751Km) long and only lightly patrolled.15 The mountainous portions of

Indo-Nepal Human Trafficking: A Challenge; Post Earthquake Perspective 3 the Indo-Nepal boundary lie in Sikkim State and Darjeeling district of West Bengal in the east, while rest of the boundary runs along the plains in the south and along the Mahakali River in the west. Three India states namely Uttarakhand, Uttar Pradesh and Bihar share the porous boundary in plains. Nepal-India border is unique in the world in the sense that people of both the countries can cross it from any point, despite the existence of border check posts at several locations. There are 22 check posts meant for carrying out bilateral trade. As the entire length of the border except the check posts is largely unmanned by police or paramilitary or military forces of either country, illegal movement of goods and people is common feature on both sides of the India-Nepal border.16 Nepali women and girls are subjected to sex trafficking in Nepal, India, the Middle East, China, Malaysia, Hong Kong, South Korea, and Sweden. Nepali men, women, and children are subjected to forced labor in Nepal, India, the Middle East, China, Malaysia, South Korea, Israel, and the United States in construction.17 South Asia, with India at its centre, is the fastest-growing and second-largest region for human trafficking in the world, after East Asia, according to the United Nations Office for Drugs and Crime (UNODC). Over 1.5 Lakh people are known to be trafficked with in South Asia every year, but the trade is conducted underground and the real figure is likely to be much higher.18 Thousands of young girls are trafficked in India alone, including many from Nepal, and sold into forced marriage, bonded work as a prostitute or as a maid or paid for their organs. It is not an easy task to watch over and control thousand kilometre open border between Nepal and India. Though police posts are established at limited and important entry points for

4 Indo-Nepal Human Trafficking: A Challenge; Post Earthquake Perspective border security, policing the entire border is out of question. There are many roads that can be used to avoid the police posts at the entry points. However, trafficking also takes place with impunity at the places where police posts already exist. The traffickers take advantage of disorganized open border and traffic thousands of girls into India. Being brought over through overland routes, girls are being trafficked through aerial route to India. Nepal prohibits women under age 30 migrating to Gulf countries for domestic work, the traffickers have started to take these women to India by road and then sent to various Gulf countries by air. Human trafficking across the Indo-Nepal border is a serious concern. Estimates of Nepalese being trafficked into India vary from one to two lakh.19 Human Rights Watch (2005) estimated that 6,000-10,000 Nepalese are trafficked into India annually. 70 percent of trafficked victims, most of them under 16, come from ethnic minority groups (e.g., Tamang, Gurung, Magar and Sherpa) who live in remote mountain villages or poor border communities. Trafficked victims are sold to brokers for amounts as small as Nepali Rs. 200 who then deliver them to Indian brothels for amounts ranging from Rs. 16 to 40 thousand. India is also a transit country for Nepalese and Bangladeshi women trafficked to Pakistan, Western Asia, and the Middle East and for women trafficked from the Russian Federation to Thailand.20

Current Scenario at Indo Nepal Border As per UNICEF, at least 245 children have been intercepted from being trafficked and unnecessarily or illegally placed in children’s care homes since the first earthquake hit Nepal almost

Indo-Nepal Human Trafficking: A Challenge; Post Earthquake Perspective 5 two months ago.21 The recent spike in migration from Nepal to Indian states bordering the Himalayan country is suspected to be the outcome of human trafficking. Large number of trafficked girls and children from Nepal were rescued in Delhi airport while fleeing to Dubai.22 According to the (SSB), mandated to guard Indo-Nepal frontier and collect intelligence on suspicious activities, a large number of victims were stopped along the Raxaul and Jogbani border in Bihar, Rupaidiha and Maharajganj in Uttar Pradesh and Jhulaghat in Uttarakhand. Trafficking incidents started to rise within a week after the quake. PAIRVI along with partners from India and Nepal conducted a series of consultations in Border States, which revealed huge spurt in migration and human trafficking along the border. Some of the revealing facts from the Consultations are explained below. In Bihar the situation worsened after the earthquakes. The Indo-Nepal border at Raxaul has become a vulnerable point in the present situation as just everyone wants to flee Nepal right now. This has increased risks of the fleeing population of quake victims falling into the nets of human trafficking. Close to one lakh Indian nationals have returned from Nepal through the India-Nepal border post at Raxaul in a month after earthquake. The workers from poor villages in Bihar who were laid off after the earthquake were lured by traffickers and were convinced to allow their children, between the ages of 8-14, to travel with the traffickers, who promised to give them well-paid jobs in comfortable conditions. Some of these children (28) were rescued in May this year from a garment factory in Ludhiana. They were being paid around 150 rupees a week to stitch T-shirts. The Nepalese children had come to India around two weeks before

6 Indo-Nepal Human Trafficking: A Challenge; Post Earthquake Perspective the earthquake.23 Authorities in Bihar had also rescued around 20 children from a Mumbai-bound express train at Raxaul railway station on May 23rd.24 According to media report SSB officials said that arrested trafficker revealed during interrogation that parents of some of the rescued children were working as labourers in Nepal but after the Nepal disaster, they became jobless and vulnerable to the lure of money and persuasive powers of middlemen engaged by the trafficking racket. SSB had rescued over 250 children and women from trafficking gangs since 2013. All border out posts of the SSB have been sounded alert to keep an eye open for human traffickers after the Nepal quake.25 In Uttar Pradesh in the last one and half months, over 500 boys and girls from Nepal have been brought to India by human traffickers on this side of Indo-Nepal border and were sent to Delhi and Mumbai. Maximum trafficking has been done from Bahraich which has 110 km of open border between Uttar Pradesh and Nepal. These human traffickers were almost dormant for the last three years because of the vigilant central and state intelligence agencies but returned to business after April 25 earthquakes in Nepal.26 Sudden spurt in migration to Uttarakhand presents heightened risk of trafficking. Major transit points in Uttarakhand are Banbasa, Dharchula and Jhulaghat. According to the Uttarakhand Police, the anti-human trafficking cells have been opened to check the trafficking, which increased after the devastating earthquake that hit the country last month. Banbasa police () has also activated its anti-human trafficking cell and regularly runs an awareness campaign at Banbasa border post with Nepal.27

Indo-Nepal Human Trafficking: A Challenge; Post Earthquake Perspective 7 Gaps in policy framework India’s human trafficking laws and efforts have historically focused nearly exclusively on trafficking for sexual exploitation purposes despite the fact that the majority of human trafficking in India is for the purpose of forced labour. India’s laws do not explicitly recognize and penalize all forms of trafficking to the extent required by the UN Trafficking Protocol. The definition of human trafficking contained in the now-amended Section 370 of the Indian Penal Code excludes forced labour from its definition. As a result, such conduct is not covered by Section 370’s trafficking prohibition. Other existing laws on forced labour in India do not adequately address the intricate problems involved in the trafficking of persons for the purpose of labour. Furthermore, the Amendment Act reformed Section 370 to punish those who engage victims of sex trafficking, yet it did not similarly criminalize the acts of those who engage victims of labour trafficking.28 India is also confronting with challenges to rehabilitate the trafficked victim. There is lack of adequate policy and institutional framework to provide an effective system for the safety, recovery and compensation of human trafficking victims as required by the UN Trafficking Protocol. Compensation systems are necessary to provide trafficking victims with the economic resources and protection to avoid being re-trafficked, the financial resources to afford psychological recovery services, and the means to reintegrate into society. Rehabilitations schemes mostly focus on sex trafficking and not trafficking for other purposes like labour. Weak enforcement machinery and inordinate delay in justice delivery helps the traffickers to recruit or re-traffic women and children from the districts and send them to distant destinations

8 Indo-Nepal Human Trafficking: A Challenge; Post Earthquake Perspective with relative easily. Rare conviction of the real traffickers encourages the operators of the trade to continue the lucrative trade and earn huge margins without any investment. Moreover, unwillingness of the victims to seek legal redress due to absence of support from the police and the community members is also contributing to the spread of this crime.29 The Immoral Traffic (Prevention) Act, 1956 (ITPA), is the most important legislative instrument for the prevention and combat of trafficking in human beings in India. However, till date, its key object has been to prevent traffic in women and girls with the intention to force them into prostitution. The provisions of ITPA criminalize the persons who procure, traffic and profit from the trade but fail to provide a clear definition of ‘trafficking’ per se in human beings. However, the Act has been criticized on various accounts. It provides a measly amount of Rs. 20,000 as compensation to the victim.This meageramount act as neither a deterrent nor it provides for rehabilitation of the victim. There is a grave danger of the rescued persons falling back into the traps of the traffickers. Also, the punishment provided to the trafficker under Section 3 of the Act is only three years. Such punishment does not act as a deterrent to offenders. There have been very few instances of conviction under the Act indicating its failure in curbing trafficking. The Act only criminalizes trafficking but ignores other aspects of trafficking.30 Nepal prohibits many, but not all, forms of trafficking in persons through the 2007 Human Trafficking Transportation (Control) Act and the 2008 regulation. While the HTTCA criminalizes slavery, bonded labor, and the buying and selling of a person, it does not criminalize the recruitment, transportation, harboring, or receipt of persons by force, fraud, or coercion for

Indo-Nepal Human Trafficking: A Challenge; Post Earthquake Perspective 9 the purpose of forced labor. It criminalizes forced prostitution but in a departure from the 2000 UN Trafficking Protocol does not consider the prostitution of children as a form of trafficking absent force, fraud, or coercion. The law also criminalizes facilitating prostitution and removal of human organs. Prescribed penalties range from 10 to 20 years’ imprisonment, which are sufficiently stringent and commensurate with those prescribed for other serious crimes, such as rape.31

Challenges in Indo-Nepal Cross Border Trafficking India and Nepal, tier 2 countries according to US Department of States, are source, destination, and transit country for human trafficking. The poor compliance with international protocol and domestic laws coupled with weak enforcement machinery, inordinate delay in justice delivery and low conviction rates encourage the traffickers to continue the lucrative trades in both countries. With a business of 32 billion US Dollar annually, human trafficking emerged as a fastest growing criminal industry worldwide. Open and porous borders within the region have eased trade, but they also pose a challenge in detecting, identifying and reporting incidents of human trafficking. The effective mechanism to share the information is crucial to effective and timely rescue. Cross-border human trafficking brings with it the additional challenge in repatriating the victims. On numerous occasions, victims are rescued, but due to lengthy legal and bureaucratic procedures it can take years for the victim to be repatriated to their home country.32 India currently does not comply with the UN Trafficking Protocol’s recommendations for migration issues

10 Indo-Nepal Human Trafficking: A Challenge; Post Earthquake Perspective arising from the trafficking of persons. Cross-national victims of human trafficking are treated as violators and not as victims.33 Identification of traffickers and the trafficked victim is one of the toughest tasks in case of Indo-Nepal trafficking. Traffickers are usually known to the victims and identify themselves as their family member. Traffickers often manage voter’s identity card on both sides of boundary and easily camouflage them as citizens. Often traffickers have no idea whom he/she is going to hand over the victim.34 Recommendations PAIRVI, in association with their partner organizations in the states along the Indo-Nepal Border in Bihar, Uttar Pradesh and Uttarakhand conducted a series of consultations with local organizations, local Police, SSB and government officials. The main recommendations emerging out of these consultations are given below.

1. Ministry of women and Child Development, India must have a democratically designed Protocol and integrated plan of Action to combat human trafficking. It should be mandatory for every concerned agency to comply with it, considering all forms of trafficking, not only trafficking for sexual exploitation. 2. Government-run shelter homes are over crowded and unhygienic, offer below average food and provide only limited services. Hygiene and services offered in state-run rehabilitation homes should be improved and victims are not involuntarily detained in these facilities. Strengthen

Indo-Nepal Human Trafficking: A Challenge; Post Earthquake Perspective 11 coordination between state-run and non-state rehabilitation homes and services in order to maximize capacity. 3. Low conviction rate, delay in justice delivery system and lengthy legal process encourage traffickers and discourage victims to seek justice. The fast track courts should be set up in every district and victim should be given free legal help including assistance in accessing compensation.A uniform judicial procedure for granting police protection to victims as well as their families and friends should be set up. 4. Illegal migration should be checked at source. As most of the vulnerable belong to villages, there must be a migration register in every Panchayat and head of the village should maintain the register to record entries made to and from the village. Block and district level officer should supervise the migration register regularly so that safe migration can be ensured. Migration permit from Panchayat level should be made mandatory for every men, women and children while going out of the district to work. 5. There should be a detailed survey of areas and communities prone to trafficking and community strengthening and capacity building programme, thereafter, should be organized to check the migration. Vulnerable sections are almost unaware about the consequences of trafficking, government schemes of rehabilitation and the legal procedure. They must be made aware of these provisions through targeted campaigns. 6. Rehabilitation of victim becomes very important for his/ her physical, social and psychological developmental needs.

12 Indo-Nepal Human Trafficking: A Challenge; Post Earthquake Perspective Therefore, special rehabilitation package should be given to the victim to make them economically independent enabling them to be mainstreamed and to protect them from re-trafficking. 7. Generate a centrally administered fund, uniform and easily accessible compensation system for victims of all forms of human trafficking, which take into account the particular circumstances and needs of individual cases. 8. Anti Trafficking Units working in the region must be equipped with and should be provided better infrastructure. 9. As railway is the important medium for trafficking, Government Railway Police and Railway Police Force must be trained and sensitized to deal with trafficking. 10. To strengthen the vigilance, joint check posts at identified filtration zones are to be created. Police check posts situated on both sides of the border needs to be actively mobilized against girl trafficking. There should be special surveillance and regular checking up to five kilometres on both sides of the border. 11. Police from both sides together with the local organizations needs to form joint surveillance groups at the main entry points where trafficking occurs. 12. There should be increased communication and coordination between police forces of Nepal and India. 13. Specific policies should be made to protect trafficked victims from sexual and physical abuse after their rescue while in custody of law enforcement.

Indo-Nepal Human Trafficking: A Challenge; Post Earthquake Perspective 13 14. Bilateral and multi-lateral agreements to address factors contributing to trafficking need to be scaled up. Explicitly decriminalize immigration violations when they are committed by undocumented migrants who are present in the country as a result of having been victims of human trafficking. Reduce the identification requirements for the repatriation of victims of human trafficking that voluntarily choose to return to their countries of origin. Adopt policies that take into account the safety of victims during the repatriation process, including post-border communication and resources for the victim. 15. Social awareness programs should be conducted in the form of a campaign. Public awareness and publicity programs should be conducted in villages and entry points where trafficking takes place. Rickshaw puller and drivers of public vehicles along the border area should also be made aware and mobilized. In order to stop second line generation from trafficking mobilization, and campaign at source point and larger coordination at local level is essential.

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14 Indo-Nepal Human Trafficking: A Challenge; Post Earthquake Perspective Refferences:

1. http://www.hindustantimes.com/india-news/rescue-of-children-from- india-nepal-border-confirms-post-earthquake-trafficking-fears/article1- 1350798.aspx 2. http://data.worldbank.org/country/nepal 3. http://qz.com/431350/10-charts-that-capture-how-nepal-is-struggling-to- survive-after-the-earthquake/ 4. http://indiatoday.intoday.in/story/nepal-earthquake-sex-traffickers-india- nepal-border/1/445525.html 5. http://www.independent.co.uk/news/world/asia/women-and-children- in-nepal-at-risk-of-sex-trafficking-after-earthquake-campaigners-warn- 10238306.html 6. http://www.hindustantimes.com/india-news/rescue-of-children-from- india-nepal-border-confirms-post-earthquake-trafficking-fears/article1- 1350798.aspx 7. http://www.livemint.com/Politics/pH6yeE2kKjiesjnpTOuIJK/States- bordering-Nepal-looking-to-curb-human-trafficking-pos.html 8. http://www.ekantipur.com/2015/05/29/top-story/quake-increased- human-trafficking-risk-maiti-nepal/405866.html 9. http://www.independent.co.uk/news/world/asia/women-and-children-in- nepal-at-risk-of-sex-trafficking-after-earthquake-camp 10. http://www.state.gov/j/tip/rls/tiprpt/2014/226649.htm 11. http://www.firstpost.com/world/nepal-earthquake-237-rescued-children- go-missing-raising-concerns-of-trafficking-2302026.html 12. http://in.reuters.com/article/2015/05/19/quake-nepal-childmarriage- idINKBN0O428F20150519 13. http://www.firstpost.com/world/nepal-earthquake-237-rescued-children- go-missing-raising-concerns-of-trafficking-2302026.html 14. http://www.trust.org/item/20150519172258-npr6/?source=fiOtherNews3 15. http://www.theguardian.com/world/2015/may/25/india-rescues-children- traffickers-exploiting-nepal-earthquake-aftermath 16. http://www.nepaldemocracy.org/documents/treaties_agreements/nep_ india_open_border.htm 17. Trafficking in Person Report 2014 accessed on http://nepal.usembassy. gov/recent-reports-on-nepal2/2014-trafficking-in-persons-report.html 18. http://in.reuters.com/article/2013/07/05/uttarakhand-floods-women- children-traffi-idINDEE96402V20130705

Indo-Nepal Human Trafficking: A Challenge; Post Earthquake Perspective 15 19. Mukherji KK, Muherjee S. Girls and women in prostitution in India. Department of Women and Child Development, New Delhi, India; 2007. 20. http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2569945/ 21. http://www.unicef.org/media/media_82328.html 22. http://northgazette.com/news/2015/07/29/cops-bust-human-trafficking- racket-delhi-airport-21-nepalese-girls-rescued/ 23. http://www.theguardian.com/world/2015/may/25/india-rescues-children- traffickers-exploiting-nepal-earthquake-aftermath 24. http://www.hindustantimes.com/india-news/rescue-of-children-from- india-nepal-border-confirms-post-earthquake-trafficking-fears/article1- 1350798.aspx 25. Ibid 17 26. http://indiatoday.intoday.in/story/nepal-earthquake-sex-traffickers-india- nepal-border/1/445525.html 27. http://www.tribuneindia.com/news/uttarakhand/special-unit-to-check- human-trafficking/88653.html 28. India’s Human Trafficking Laws and Policies and the UN Trafficking Protocol: Achieving Clarity, Policy Brief Feb 2015 by Dipika Jain,Jindal Global Law Schol, Sital Kalantry , University of Chicago Law School, Elezabeth Brundige, Cornell Law School 29. Human Trafficking in India: A Study by R.H. Waghamode , J. L. Kalyan and S. S. Angadi published in a international journal- Research Direction ,Vol 1 Issue VII Jan 2014 30. Combating Human Trafficking: A Legal Perspective with Special Reference to India by Eira Mishra 31. Trafficking in Person Report 2014 by US Department of State 32. https://www.unodc.org/southasia//frontpage/2014/July/south-asia_- unodc-initiates-regional-cooperation-projects-to-address-human- trafficking-across-borders.html 33. India’s Human Trafficking Laws and Policies and the UN Trafficking Protocol: Achieving Clarity, Policy Brief Feb 2015 by Dipika Jain,Jindal Global Law Schol, Sital Kalantry , University of Chicago Law School, Elezabeth Brundige, Cornell Law School 34. JA Arya Sub Area organizer SSB, Banbasa addressing the consultation on cross Border Trafficking organized PAIRVI on 22nd June 2015

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16 Indo-Nepal Human Trafficking: A Challenge; Post Earthquake Perspective

Published for ‘National consultation on Indo-Nepal Human Trafficking Post Earthquate Perspective; Concerns and Challenges’ organised by DEHAT, Jawahar Jyoti Bal Vikas Kendra, Maiti Nepal, Nepal National Social Welfare Association, PAIRVI, Saathi and Uttaranchal Development Institute