As Nepal begins
to recover from its deadliest disaster, the country’s youngest survivors are
now at a higher risk for another calamity of getting sucked into the human trafficking
trade. The two earthquakes that rocked Nepal on April 25 and May 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
India-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 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 Uttarakhand 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 so.10 The Nepal
Government had banned children below 16 years of age from travelling outside
their home district without a parent or 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 Terai 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 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 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 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 Sashastra Seema Bal (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. 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 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
(Champawat district) has also activated its anti-human trafficking cell and
regularly runs an awareness campaign at Banbasa border post with Nepal.27
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 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 meager amount 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 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
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
Way Forward
Social inclusion and re-integration are the most important
part of the whole system to prevent trafficking. Social inclusion should be
seen not only as a way to prevent further victimization of the trafficked person,
but also as a preventive measure against re-trafficking. It is, therefore,
special focus is needed on social inclusion of trafficked person. The
trafficked victim must have access to financial services and social security
schemes. Providing financial support and making them economically independent are
important for financial inclusion. Access to legal services and legal aid are denied to the
trafficked victims. SOPs and protocols are not often followed in rescue
operation, investigation and home verifications. It results in re-victimization
of trafficked persons. SOPs are usually
in the form of Central advisory to the State Governments which are not
implemented. SOPs are not notified by State Governments. Ministry of Home
Affairs 2009 directives to use SOPs is nonbinding to state officials. There is
need to adhere strictly with uniform Standard Operating Procedure and protocols.
References:
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
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
