Report of the National Workshop To Review the Implementation, of Laws and Policies Related to Trafficking: Towards an Effective Rescue and Post-Rescue Strategy Held at: YMCA International House and Programme Centre, Conference Hall, Ground Floor 18, YMCA Road, Mumbai Central, Mumbai - 400 008. on 27th and 28th February, 2004 Organised by: PRAYAS (Field Action Project of the Tata Institute of Social Sciences) in collaboration with the NATIONAL HUMAN RIGHTS COMMISSION CONTENTS Page No. About Prayas i Introduction to the Workshop ii Background Note iii I INAUGURAL SESSION 1 II ROLE OF THE POLICE IN THE PROCESS OF RESCUE 16 III ROLE OF JUDICIARY IN RESCUE AND POST-RESCUE PROCESS 22 IV INTERACTION WITH THE RESCUED VICTIMS AND WOMEN/GIRLS 27 VULNERABLE TO PROSTITUTION V NATIONAL STUDY ON TRAFFICKING 28 VI INSTITUTIONAL PROGRAMME IN THE REHABILITATION PROCESS 41 VII COMMUNITY BASED REHABILITATION 51 VIII OPEN HOUSE DISCUSSION 56 IX VALEDICTORY SESSION 59 X RECOMMENDATIONS 64 ANNEXURE I: Concept Note 70 ANNEXURE II: Note of Laws and Procedures Related to Prostitution 81 ANNEXURE III: List of Participants 92 ANNEXURE IV: Programme Schedule 99 ABOUT PRAYAS,.. Prayas is a field action project of the Tata Institute of Social Sciences, working in the field of criminal justice through social work intervention in three districts of Maharashtra and Gujarat, since the past fourteen years. The project focuses on the rehabilitation of persons coming out of crime or prostitution and is based in prisons, police stations, courts, legal aid systems, rescue homes for women/minors in prostitution and in community based rehabilitation centres. It works with above mentioned objectives through placement of full-time social workers and teachers as well as part-time staff, volunteers and students of social work and law. The intervention of Prayas in the field is aimed at two levels: 1) Rehabilitation of persons coming out of crime or prostitution. This is done on a case by case basis, by coming in contact with persons needing help, guidance or assistance at the various contact points where our staff are based, both inside institutions as well as through our community centres in Mumbai, Thane and Bharuch. 2) Law and policy change on issues related to custody, detention, trial and rehabilitation. This objective is achieved through two broad areas - research and documentation of issues and advocacy with government departments, judiciary and society. Developments leading to the National Workshop ... The initial experience of Prayas at the Government Protective Home for rescued women, led to a realization that post-rescue work should start from the police station itself, as that is the first point of contact with rescued minors and women. The first hand experience in counseling of girls/women rescued or removed by the police, provided the base to understand the barricades and problems in the process of effective rescue and post-rescue work. This included the ground level problems faced by field staff from the police and the protective home. Out of these experiences, a need emerged to bring all the agencies involved in rescue and post-rescue work on a common platform to discuss problems faced in the implementation of laws related to the rescue and rehabilitation of women and minors in prostitution. It was with this aim that Prayas approached the NHRC with the idea of organising a national workshop on laws related to trafficking to review the rescue and post-rescue strategy with regard to trafficked women and minors in the country. Prayas 9/1, B.D.D. Chawls Worli, Mumbai: 400 018 Phone No. : 022-24947156/24902285/23005329/23004429 Mobile No: 9223436350 Fax No. C/o: 022-24953253 Email : [email protected] INTRODUCTION TO THE WORKSHOP The National Human Rights Commission in collaboration with Prayas (A Project of the Tata Institute of Social Sciences, Mumbai) had organized a two-day National Workshop to Review the Implementation of Laws and Policies Related to Trafficking: Towards an Effective Rescue and Post-Rescue Strategy at Mumbai on 27th and 28th of February, 2004. The main focus of this workshop was on one of the most oppressive and visible forms of trafficking, i.e. trafficking of women and children in prostitution. The National Workshop was inaugurated by Dr Justice A.S. Anand, Chairperson of the Commission. Justice (Smt.) Sujata V. Manohar, Member, NHRC, Justice Shri C. S. Dharmadhikari (Retd.) Smt. Kasturi Gupta Menon, Secretary, DWCD, GOI, Smt Veena Rao, Joint Secretary, DWCD GOI, Shri S.S. Dodd, Principal Secretary, DWCD, Maharashtra, and Prof. U.S. Nayar, Deputy Director, TISS also graced the inaugural session of the workshop. Justice Manohar, Smt. Gupta Menon and Smt. Veena Rao stayed on for the two days and gave valuable inputs throughout the duration of the workshop. Justice Manohar also gave the valedictory address of the workshop. The workshop was attended by government officials from the Judiciary, Police and the DWCD of eleven states (Andhra Pradesh, Bihar, Goa, Karnataka, Maharashtra, Meghalaya, Orissa, Tamil Nadu, Uttar Pradesh, West Bengal and NCT of Delhi), NGOs, lawyers and academicians involved in the issue of rescue and rehabilitation of women and minors in prostitution. The main objectives of the National Workshop were: (I) to review the effectiveness of the provisions of ITPA, JJA, IPC and other laws for the rescue and post-rescue work, (ii) to exchange the experience amongst the concerned agencies with regard to rescue and post-rescue work, (iii) to suggest ways to overcome the problems faced by the various government functionaries involved in rescue and post-rescue work, and (iv) to review the policy, schemes and plan for the effective rescue and post-rescue work of trafficked girls/women. The two-day workshop witnessed a healthy and meaningful series of discussions amongst the participants who shared their own experience and observations. BACKGROUND NOTE Trafficking in human beings is a global phenomenon, which has gained momentum in recent years. The reasons for the increase in this phenomenon are multiple and complex. Trafficking in general seems to have taken advantage of the globalization of the world economy that has led to increased movement of people, money, goods and services to extend its own international reach. It feeds on poverty, despair, war, crises, ignorance and women's unequal status in most societies. Trafficking has been defined in varied ways over its history, and in recent years largely to accommodate the specific needs of the organization or body developing the definition. It has thus been variously defined, among others, in terms of human rights, criminal activity, irregular migration, labour exploitation and modern slavery. The Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (the UN Trafficking Protocol) that was opened for signature in December, 2000 brought much-needed and widespread consensus on a working definition of trafficking. This Protocol defines trafficking as ".. the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation" [Article 3(a)]. It further specifies that 'exploitation' shall include at a minimum, "the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal or organs." The UN Trafficking Protocol is an important step in the growing body of instruments that consolidates understanding of trafficking as the movement and exploitation of human beings for whatever purpose. Ironically, trafficking has often been confused as movement only for commercial sexual purposes, and has thus not been comprehensively dealt within law. Still in many countries, anti- trafficking laws are also the prostitution laws, which seek to criminalize or regulate or control the sex industry and sex trade. There is clearly an urgent need for countries to review laws that do not take account of a comprehensive understanding of trafficking and to ensure that adequate protection in law is provided for both adults and children who are victims of this heinous act. This holds true for India too. Trafficking is prohibited by the Indian Constitution. The right against exploitation is a Fundamental Right guaranteed by the Constitution of India Under Article 23, "traffic in human beings and beggary and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law." In accordance with the Constitution, the Government of India enacted the Suppression of Immoral Traffic in Women and Girls Act, 1956, which criminalizes trafficking. The Act does not prohibit prostitution, but does prohibit prostitution related activities such as keeping a brothel or allowing premises to be sued as a brothel, living on the earnings of prostitution and procuring, inducting or taking a woman or a girl for the purpose of prostitution. The Act was amended in 1986 and renamed as the Immoral Traffic (Prevention) Act (ITPA). The ITPA introduced several initiatives including setting-up of Protective Homes to provide protection and services to victims and education and vocational training to at-risk groups. The Act also provides for the appointment of Special Police Officers assisted by women police to investigate trafficking offences, and for the setting up of Special Courts. 6. The implementation of the ITPA is hampered by the existence of certain Sections, such as, Sections 8 and 20, which are the most commonly invoked Sections for any enforcement being done under the ITPA. These Sections result in prosecution of the trafficked persons and result in further victimization of the victims/trafficked persons.