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2

Systemic Apathy: Victims of Human Trafficking and Their Struggle for Justice

John Richard Ebenezer

Tina Kuriakose

Ruth Thomas

Introduction

Human trafficking is the fastest growing organised crime in India and the third largest illegal trade after drugs and arms smuggling.1 The 2017 Global Estimates of Modern Slavery estimated 4.03 crore victims of slavery worldwide at that time. Of these, 2.5 crore were estimated to be forced labour, with 1.83 crore in forced labour situations in India.2 In 2017, the Ministry of Labour and Employment issued a statement making a commitment to release and rehabilitate 1.84 crore bonded labourers by 2030 and obtain 100 per cent conviction in cases.3 In fact, the Government of India has introduced a scheme for the rehabilitation and provision of cash assistance called the Central Sector Scheme for the Rehabilitation of Bonded Labourers, 2016.4

The Ministry of Home Affairs described human trafficking as a ‘crime committed in order to target, lead, or drive a human being into an exploitative situation with the aim to make profits. Such exploitation may take many forms, for example commercial sexual exploitation, child labour, forced labour, bonded labour, or illegal organ removal.’5

Bonded labour (BL), a form of physical exploitation in human trafficking in India, involves the exploitation of the most disadvantaged social strata. According to the Government of India, nearly 86 per cent of the bonded labourers released and rehabilitated by the government are from the scheduled caste (SC) and scheduled tribe (ST) community.6 Poor and uneducated persons from vulnerable communities seek employment in the unorganised sector, most often in unregistered units such as brick kilns, stone quarries, agricultural farms, rice mills, toy-making units, and bindi-making units. They gain employment through middlemen under the promise of a better life. Little do these people know that they and their families will be treated as property; their time, efforts, skills, and family life will be at the beck and call of the employer or his/her manager. Migrant workers are especially vulnerable owing to language barriers and lack of social networks and protection.

Human trafficking for commercial sexual exploitation (CSE) is a violent form of sexual and physical exploitation where vulnerable people are abused for another’s economic gain. People, particularly women and children, from all over India are drawn to metropolitan cities, such as Kolkata and Mumbai, to find work but are instead tricked into the sex trade. Commercial sexual exploitation has evolved to be a highly profitable business, generating over 9,900 crore dollars per year in 2014.7 The ILO estimated in 2012 that at least 45 lakh people are forced into CSE worldwide.8 Women and girls represent the highest proportion of victims of trafficking.9 In 2014, the UN released findings that 49 per cent of trafficked victims are women, and 21 per cent of all trafficked victims are girls younger than 18 years of age.10

Legal Provisions for Human Trafficking Offences

Table 2.2.1 is a representation of India’s legislative framework for action against human trafficking, the prohibition of commercial sexual exploitation, and labour exploitation.

Table 2.2.1.India’s Legislative Framework

Bonded Labour/Labour Trafficking

The operational definition of human trafficking has three parts—acts, means, and purpose (AMP). The purpose of human trafficking is exploitation for sex, labour, or organs. Physical exploitation under the definition of human trafficking (Section 370, IPC) will include exploitation for bonded labour, and can attract provisions of the BLSA which aims to eliminate physical and economic exploitation.

At the same time, there are cases where the elements of human trafficking for the purpose of labour (physical) exploitation are present, but do not attract the elements of the BLSA. Conceptually, however, whether it is bonded labour or trafficking for labour, both deal with physical exploitation or commodification of human beings.

Some cases, where the perpetrator recruits, harbours, or transports the victims from one location to another location for the purpose of exploitation, including physical exploitation, involuntary servitude, or practices similar to slavery, can be categorised as labour trafficking as well. According to the preamble of the BLSA, bonded labour is a form of physical and economic exploitation of the victims, and therefore, some cases of bonded labour come within the purview of labour trafficking as well. There are laws to protect against labour trafficking, but strong and consistent implementation of these laws across the country remains a problem due to the lack of prioritisation by the criminal justice system and the executive bodies who are mandated to eradicate evils such as bonded labour and sex trafficking. Article 23 of the Constitution prohibits trafficking in human beings and forced labour, naming human trafficking as a punishable offence. This is a unique reference; the Constitution does not call out other such acts, except for the offence of untouchability. The framers of the Constitution intended forced labour to be a crime of a constitutional nature.

The BLSA requires the government to identify, rescue, and rehabilitate victims of bonded labour and prosecute offenders. Unlike other criminal legislation, the District Magistrate (DM) and officer authorised by him has an important role in this.11 Bonded labour is punishable under the SC/ST Act, Section 374 (unlawful compulsory labour) of the IPC, and Section 79 of the JJA. The amendment to Section 370 of the IPC in 2013, which was introduced following the Nirbhaya gang rape and recommendations of the Justice Verma Committee, is an important addition in the efforts against trafficking. This amendment recognises physical exploitation as a human trafficking offence and enhances the penalty for human trafficking to rigorous imprisonment for seven years and which may extend to life imprisonment depending upon the gravity of the offence. Thus bonded labour also comes under the ambit of labour trafficking.

Sex Trafficking

Article 23 of the Constitution prohibits trafficking in human beings for any type of exploitation, including trafficking for CSE.12 The ITPA details all activities which constitute the offence of human trafficking for CSE. The IPC further defines trafficking of persons and punishes any act of trafficking.13

Access to Justice

Although the laws mentioned are in place in India to combat both bonded labour and sex trafficking, implementation of these laws is sometimes uncertain. Many people might not be able to actually access the justice that is owed to them.

Formal justice mechanisms in India are complex and beyond the reach of the majority of India’s population. As the Report of the Working Group for Twelfth Five Year Plan of the Department of Justice India highlights, the cost of litigation has increasingly become prohibitive to large sections of society, especially marginalised populations.14 Along with low levels of awareness of their rights and little awareness of the measures provided by the government (including legal services), the marginalised face many obstacles in accessing justice, including gender discrimination and illiteracy.

Article 14 of the Constitution guarantees equality before the law and equal protection of laws. Equality before the law means that all parties to a legal proceeding must have equal opportunity to access courts to present their cases. However, in reality, for the indigent, who cannot meet basic economic needs, accessing justice in the court remains a fantasy because they are simply unable to access good lawyers since most of the experienced lawyers are more favourable towards people who can afford to pay their fees. Therefore, as Article 14 is a right enshrined under the Constitution, the inaccessibility of legal services to poor litigants is not just a problem of procedural law but a violation of constitutional rights.

One of the most serious challenges to the protection of human rights through rule of law is the inability of the justice system to deliver speedy and affordable judgments, indicated by the number of pending cases in Indian courts.15 India has 3.2 crore pending cases, the majority of which are in district courts, and are related to criminal law and have been pending for over two years.16

Article 39A (Equal Justice and Free Legal Aid) of the Indian Constitution, under the Directive Principles of State Policy reads: ‘The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.’ The Legal Services Authority Act, 1987 mandates State Legal Services Authorities (SLSAs) and District Legal Services Authorities (DLSAs) to work closely with civil society organisations, government agencies, and academic institutions to ‘promote the cause of legal services to the poor’.17 However, many of these authorities are unaware of the nuances of trafficking cases and, therefore, most of the victims depend on the prosecution for their cases.

In the opinion of Justice Bhagwati in Hussainara Khatoon v. State of Bihar,18

This is a constitutional right of every accused person who is unable to engage a lawyer and secure legal services, on account of reasons such as poverty, indigence, or incommunicado situation. The State is mandated to provide a lawyer to an accused person if the circumstances of the case and the needs of justice so require, provided the accused person does not object to the provision of such lawyer.

With that in mind, this chapter seeks to view access to justice for human trafficking victims from a wide angle since reports19 indicate that the ‘justice system’ is not limited to the judicial pillar alone, especially in human trafficking cases where the rescue is done by the state, which includes the police, district administration, and the judiciary. Additionally, this article discusses related aspects, such as the extent of legal awareness and empowerment, availability of legal aid, and victim-sensitive response from public justice officials including the police, prosecutors, and judges.

Human trafficking victims cannot access justice immediately through courts, mainly because the crime is a heinous criminal offence. The state takes responsibility, and the primary implementers are the jurisdictional district judge, judicial magistrate, and the police system. While the litigant in such cases is the state, the initial phases of the FIR and chargesheet are handled by the police, who do not act as service providers for the victim. In most cases, if an NGO does not follow up with the trafficking cases, the FIR filing gets delayed, and the 161 statements20 and investigation are done callously which end up in an unsatisfactory chargesheet. This simultaneously leads to contradictions in court evidence, thus ending up in acquittals. In most cases, the victims seldom follow an investigation or trial process, mainly because they are unaware of the procedures.

Our analysis on the justice system focuses on the police system mainly because in trafficking cases, the primary implementer for a victim is the police or the district magistrate. Most victims are trapped in areas of flesh trade and forced labour and their rescue from these exploitative situations marks the first step towards justice. In order to stop the perpetrator from perpetuating crimes, a legal battle is necessary and, therefore, a lot of work involves the police; it is only during the later stages that the courts become their agents of justice. Therefore, most of our data revolves around the police system and less on the judicial system.

We place our findings under four fronts, which are deemed to be the most significant barriers to justice in human trafficking cases.

  1. Survivors’ level of confidence in the public justice system (PJS).
  2. Survivors’ knowledge about accessing the PJS.
  3. The detrimental costs associated with accessing justice (this includes police, district administration, and the judiciary).
  4. Institutional challenges.

These categories will be addressed in relation to bonded labour/labour trafficking and sex trafficking as separate crimes, although they are linked under the umbrella of human trafficking, therefore, common obstacles to justice may overlap. To examine access to justice for trafficking victims, we analysed a total of 150 cases from several states, using data from five International Justice Mission (IJM) offices. The data from these cases is analysed under the heading ‘Detrimental Costs and Delays’.

Table 2.2.2.Number of Human Trafficking Cases Examined in This Chapter

This report contains qualitative assessments of access to justice, resulting from interviews with five advocates and two social workers23 who have worked extensively on the topic of low access to justice in cases of labour trafficking. For sex trafficking cases, IJM interviewed five lawyers and one social worker, who have worked with sex trafficking victims.

Survivors’ Level of Confidence in the PJS

Bonded Labour/Labour Trafficking

Most bonded labour victims are from marginalised communities. Owing to generations of exploitation, there is a general mistrust in the PJS that has consistently failed and excluded them. Many have come to accept violent exploitation as inevitable, and have no expectation of justice. ‘They do not even recognise that what is being done to them is a crime,’ says one advocate. In an interview with a social worker in Bengaluru, it was suggested that many survivors do not have a notion of, or desire for, justice as we tend to perceive it. In addition, exploitation is normalised to such an extent that many victims are not ready to oppose their exploiters.

Victims are often trafficked by person(s) from their village or an adjoining village; approaching the police then becomes a great risk, since victims and/or their families live in close proximity to the trafficker or his/her relatives or friends, who usually are local elites or have powerful connections that can result in intimidation. ‘We have not been able to provide adequate victim protection, and this is another reason victims are often afraid to approach the criminal justice system,’ the advocate said. Survivors are generally intimidated by the institutions that are intended to protect them. Reliving the trauma of their past experience is unpleasant, particularly when the victim is unsupported. Hostile environments, the stressful possibility of meeting their former oppressor in court, and lack of resources dissuade survivors from engaging with the PJS. In some cases, survivors beg the pro bono lawyers and social workers to leave them alone. Some tribal communities prefer not to approach the criminal justice system at all, choosing to settle matters internally with the help of community leaders.

Police are not seen as an adequate source of protection by survivors. One of the social workers said that ‘even when the victim is from a SC or ST background, and when he faces atrocities, the police see them as an accused.’24 Therefore, survivors’ level of confidence in approaching the police for criminal investigation or rescue is low. There was an incident in which some victims escaped from their workplace and approached the police for rescue, but at the insistence of the perpetrators they were beaten and sent back to the workplace. The perpetrators claimed they were ‘cheating the owners by not repaying the cash advance’. The major hindrance seen is the manner in which the government responders perceive the issue; they sympathise with the perpetrators, rather than the victims.

Interestingly when compared to previous years, it has been observed that more released bonded labourers/labour trafficking victims are now approaching the District Administration (DA) directly, particularly in four northern districts of Tamil Nadu (Kancheepuram, Thiruvallur, Vellore, and Thiruvannamalai). In these districts, while the Released Bonded Labourers’ Association is becoming proactive in taking complaints to the DA, their confidence comes from their prior experience in being rescued.

Sex Trafficking

All of the lawyers and social workers interviewed by IJM were unanimous in their stand that sex trafficking survivors do not have confidence in the PJS. However, it was suggested that the confidence of survivors could be built by counselling from social workers and lawyers, coupled with in camera trial, interim victim compensation, and allowing child survivors to give their evidence within a month.

When victims are trafficked to brothels, they are often brainwashed into believing that they are culprits of a crime. They are made to believe that the police intend to incarcerate them, not release them. It is difficult to break that initial barrier of mistrust.There are general misconceptions among the police about the consent of CSE victims. Police are often rude to victims during a rescue, believing that the girls are doing this of their own free will. This insensitivity creates a lack of confidence among the victims in the PJS and can even lead to revictimisation by the police.

Additional factors include:

  1. Lack of compensation schemes: In Maharashtra, there is no compensation scheme for any kind of trafficking victim. Victims are awarded compensation by the courts under Section 357 of the Code of Criminal Procedure, 1973 (CrPC) but never actually receive the amount due to ‘insufficiency of funds’.
  2. Lack of rehabilitation facilities: Due to the lack of infrastructure to provide good rehabilitation facilities for victims, social reintegration becomes a huge problem. Victims feel as if they have been rescued from one prison (the brothel) and put into another (the shelter home). This often leads to re-trafficking, as the girls do not have the resources to start a new life and get a new job.

Survivors’ Knowledge about Accessing the PJS

Victims of human trafficking for CSE and victims of bonded labour/labour trafficking have very low levels of awareness of their rights and how to access the PJS. Most victims, on average, have studied up to the fourth or fifth standard. According to social workers experienced in handling cases related to sex trafficking and labour trafficking, victims’ general awareness about the PJS or their legal rights is little to none.

Unlike other offences, where the police respond and initiate criminal investigation, offences under bonded labour/labour trafficking can be dealt with by the police and officials within the DA. Unfortunately, bonded labour/labour trafficking victims do not know about these authorities and struggle to approach them. Even after being rescued, victims of bonded labour/labour trafficking are given little to no guidance or information regarding their rights.

In one case reported by an advocate, the police told the victims to leave and be grateful that they had received their back-wages. The police empathise with employers as they are seen as providers of employment, thus helping the local economy. An advocate reported that in one workplace, the victims testified that the police had approached them and told them not to say anything, if anyone approached them regarding being rescued. The employers belong to the powerful elite in the village, so the police often choose to be complicit with them.

The general perception of PJS implementers is that bonded labour is a labour issue, not a crime, and therefore, need not be treated as a priority by law enforcement. Corruption exacerbates the slow or lacking response. Many feel that the DMs do not think that this is an issue that needs to be addressed; labourers and NGOs wait for hours to meet the DM for a response to a complaint. As a result of these perceptions and institutional apathy, victims do not know how to access justice.

Detrimental Costs and Delays

Bonded Labour

Costs and delays are intrinsic to the process of accessing justice for any victim of trafficking. Bonded labour cases in particular are defined by delays, from the filing of FIR to prolonged investigation to the trial process itself.

Bonded labour survivors engage with the PJS directly at three instances: (a) determination of status as a bonded labourer and issuing of release certificate (by the Sub-Divisional Magistrate (SDM)), (b) recording of statements by the police (under Section 161, CrPC) or by the Magistrate (under Section 164, CrPC), and (c) testimony in court. Practically speaking, the victims are sent back and forth multiple times due to delays in the process at every stage, with no daily allowance for food or travel. Even though there are provisions for payment of reasonable expenses under the CrPC (Sections 160 and 312), this is rarely paid.

Delay in investigations and trial affect recall of memory for victims, weakening the body of evidence required to bring conviction, which may already be slim due to investigation done without due care and attention. For example if low priority is given to the case by the police, then less time is spent on thorough evidence collection. Similarly, there is no provision for a time-bound trial, leaving no obligation on the judges to conduct speedy trials. If there is a speedy trial, there is less likelihood of victim intimidation or bribery and the victims would be in a better position to remember the facts and state them boldly without fear. This is likely to lead to a better judgment.

FIR and Chargesheets in BL Cases

There are significant delays reported with filing of FIRs in bonded labour cases. The victims are unaware of their rights in a police station, and often face difficulties in communicating the details of their case. Although the IPC stipulates that there are consequences for not recording an FIR or complaint, in reality the police are not held accountable if they fail to do so and often choose not to. In child labour crimes and SC/ ST atrocities, there is strong pressure from the government to file FIRs, as a result of which police officials are more diligent. If the SDM does not mention the relevant sections when filing the FIR, the police register it under soft sections, leaving out Section 370, IPC and sections prescribing stronger punishments. The sections filed under BLSA are bailable, meaning the accused can access bail easily, leaving them free to threaten the victims and force them to drop the case.

The lengthy delays in filing chargesheets are peculiar to all the bonded labour cases that were analysed. In one case, the rescue was conducted in 2015 but the chargesheet was filed only in 2018. Over time, the factual history of the case is forgotten, and the victims’ testimony becomes weaker. If the police think that the victim cannot afford the trial, they do not bother to file a chargesheet; police negligence of this kind leads to poor outcomes in court. In a few cases, chargesheets were filed within 90 days (a surprisingly short amount of time). However, none of the victims were cited as witnesses in these cases; only the friends of the perpetrators were cited as the witnesses.

The data below (Tables 2.2.3 and 2.2.4), gathered from IJM’s case data in Chennai, Bengaluru and Delhi, show the average duration that can be expected in the process of accessing justice in bonded labour cases.

Table 2.2.3.Labour Trafficking Cases in Chennai Examined in This Chapter

Analysis: When the perpetrators know that the DA is going to inspect the workplace, the survivors are very often sent out of the workplace or intimidated by the perpetrators. To counteract this, IJM tends to make a complaint only when the DA has agreed to do an inquiry quickly. The high percentage of response shows that the DA is sensitive to this issue. This is a relatively new trend that was not the case in earlier years.

In the year 2013 and 2014, the DA was not very keen on initiating a criminal case against the perpetrator, hence there were few FIRs filed

Table 2.2.4.Labour Trafficking Cases in Bengaluru Examined in This Chapter

because the DA had not given a complaint to the police. Since then, DA has shown greater resolve to register bonded labour complaints as criminal cases.

Analysis: The progress over time indicated by the data is interpreted as a result of the constant push of advocacy by IJM, other experts, and lawyers who intervened in these cases.

  1. Rescues are done up to seven days after the complaint and not immediately.
  2. There is proactivity seen in filing FIRs. Police in Karnataka have been proactive in filing FIRs immediately.
  3. The arrest rate is comparatively low as most of the owners are powerful, leading to reluctance among police to conduct arrests.
  4. Judges grant bail easily in BL cases; moreover, police charge the accused with sections that are bailable even when the offence committed is non-bailable.
  5. There is a significant delay in filing chargesheets. Most of the cases take an average of one year despite constant push from IJM representatives.

Data on Pre-trial and Trial for Bonded Labour Cases in Bengaluru

The following data analyses seven cases from 2014 and 2015 from the IJM Bengaluru office to determine the way that bonded labour cases are treated in pre-trial and trial.

For the purposes of this section, the terms ‘pretrial’ and ‘trial’ shall mean:

  1. Pre-trial: The stage from when the judge took cognizance of the crime till the stage where one witness came and testified. The period includes filing of the chargesheet, registration, committal, framing of charges, and summons being issued.
  2. Trial length: The length of time between a witness testifying in a case and the case reaching judgment. This stage includes the period from the time the first witness testifies in the case, other witness’ testimony, arguments, and the judgment.

figure 2.2.1.Average Duration of Trial (in Years)

From Figure 2.2.1, we can see that trials on disposed cases25 on average took 2.3 years (845 days) for cases filed in 2014 (four cases were analysed and the average number of years calculated) and 2.6 years (948 days) for cases filed in 2015 (three cases were analysed and the average number of years calculated).

figure 2.2.2.Average Number of Hearings and Adjournments

From Figure 2.2.2, we can see that there was an average of 11 adjournments out of 36 hearings during trial for the 2014 cases (four cases were analysed and averages calculated). There were an average of seven adjournments out of 17 hearings during trial for the 2015 cases (three cases were analysed and averages calculated). After analysis of the cases, we have determined that the reasons for the adjournments were:

  1. Judge was absent
  2. Accused was absent
  3. Survivor witness was absent
  4. Strikes/boycott
  5. Police officer was absent
  6. No translator provided for survivor witness
  7. Non-bailable warrant was issued
  8. Public Prosecutor was absent
  9. Labour official was absent

Out of these, the most common reason (21 per cent of the adjournments) was that the judge was absent from court. This used to occur when judges were asked to go for an inspection, or they went on leave, or were transferred.

From Figure 2.2.3, we can see that the length of pre-trial (from chargesheet to trial) varied between 77 days to 4.2 years for all of IJM’s pending cases.

While cases filed in 2013 took the most time, this has gradually decreased over the years.

Effects of Trial Delays

figure 2.2.5.Average Time Taken for Pre-trial Process

Once a bonded labour case reaches trial, the series of delays continue. When victims, who are in most cases landless daily wage labourers, are repeatedly summoned to the court due to multiple

figure 2.2.3.Average Time Taken from Chargesheet to Trial (in Days)

adjournments, they and their children are often left to suffer with an empty stomach. They do not have sufficient resources to pay for the costs associated with attending trial. Some communities migrate together for work and so going to court causes the entire community to be held back and lose out on work. Hence, they prefer to not go to court at all.

Interestingly, some trial courts are generous in issuing witness warrants to tribal witnesses if they do not appear in the court, and the police are extremely duty-conscious in executing these warrants. In one case, a special court in a northern part of Tamil Nadu issued a witness warrant to a family living in Tuticorin, the southern part of Tamil Nadu. The police were more than happy to execute the warrant and travelled 600 km one way to arrest the husband and wife under witness warrant. The family took their children along with them. After the trial, the police hastily put them on a bus, which went only halfway (to Madurai). This family did not have money to feed their children or money to continue the journey beyond Madurai. The desperate couple had to beg for food and for their bus fare in the Madurai bus station.

The situation for inter-state trafficking victims is even worse. Many of the victims rescued in Karnataka are trafficked from Odisha. Having been rescued by officials in Karnataka the victims are repatriated and rehabilitated in Odisha, however, FIRs and chargesheets are filed in Karnataka. Many such cases get closed and acquitted due to lack of victim evidence, because victims are unable and unwilling to make the journey to court in the destination state. On average, it takes a minimum of two days to reach Bengaluru and another two days to return.

table 2.2.6.Estimated Costs of Travel and Allowances for Victim Witnesses from Odisha

In addition, each day spent on travelling and in attending court proceedings results in the loss of a daily wage. The estimated cost to a labourer from Odisha to appear in court is ₹ 85426 (exclusive of travel, accommodation and food expenses). According to the minimum wage for brick making in Odisha, the labourer stands to lose ₹ 213.50 per day for four days.

The court and prosecution should have a victimcentric approach for the victims who are from downtrodden sections and are inter-state migrants. Currently, transformation has been observed with judges and magistrates in Karnataka in the way they conduct trials, especially when a victim witness comes for trial. Even if the defence pleads for adjournment for cross-examination, the courts usually reject such adjournments or impose a cost of ₹ 350–500 from the defence to the victims. During an interview with a lawyer for the victim, the lawyer stated that ‘judges who are presiding trials this year in Sessions Court at Ramanagara and Bengaluru Rural have ensured that the defence do not seek unnecessary adjournments when the victim witnesses are present in court and ready for testimony’.

Sex Trafficking

Sex trafficking cases are characterised by delays and slow filing of chargesheets.

table 2.2.7.Estimated Costs of Travel and Allowances for Victim Witnesses from Odisha

Analysis: Due to the fact that only one agency is involved in the process of rescuing the victim and arresting the perpetrator (police), there are fewer delays in the early stages of sex trafficking cases in comparison to bonded labour cases. There are rarely delays between the complaint being received, the rescue taking place, and the FIR being filed. However, significant delays are still evident in the filing of chargesheets.

Institutional Challenges in Accessing Justice

Challenges Related to Inter-state Cases

Qualitative research on accessing justice for trafficking victims has highlighted that while NGOs have played an important role in supporting victims towards rehabilitation and restoration, there are a few NGOs involved in prosecution. The processes in handling interstate cases pose several problems for NGOs logistically and legally, ultimately affecting the outcomes of cases. Lack of collaboration and referrals between NGOs across states has been identified as a likely contributing factor in FIRs not being filed and cases not being pursued.27 This cannot replace the need for protocols between states for coordination on interstate rescues, necessary funds and personnel, standard operating procedures to handle victim repatriation to home states, their rehabilitation and follow up prosecution. The fact that presently India’s policy for rehabilitation of bonded labourers is linked to conviction of accused, is detrimental to the sustained rehabilitation support victims of labour trafficking need. The slow and poor rate of conviction of offenders needs to be strengthened while delinking it from the rehabilitation needs of survivors and their families.

Public Justice System Response

The demands of law and order and the general trend in addressing ‘more serious crimes’ on a priority basis makes trafficking a low priority issue for the police. The police are often not trained or sensitised to the issue of bonded labour and trafficking, and do not treat the victims with the sensitivity required. Because of their status in society, victims are not extended adequate support and respect when they are in the police station or the court. Aspects of caste hierarchies, perception of the victims as deserving the offence owing to their social class or compulsions come into play in the process of accessing justice. While high violence and sexual abuse of victims can help gain some attention, courts are unable to treat these cases with the openness and sensitivity they require.

Non Co-operation from the Police

At times when a civil society organisation has information about a victim being forced into prostitution, the information is taken to the police. Often, the police are unwilling to conduct a rescue operation. The police either do not believe that the girl is being forced, or often, the police receive bribes from that brothel for their inaction. This becomes a major hurdle for organisations.

Lack of Police Infrastructure and Capacity

The police are often ignorant of trafficking laws and provisions, and therefore, do not know what to do when faced with a trafficking case. The police often do not have sufficient resources to investigate trafficking crimes, which leads to inadequate investigation.

Absconding Perpetrators

After getting bail, perpetrators often abscond to avoid punishment. This leads to the case stalling in court and the police not being able to trace them.

Ineffective Vigilance Committees

The BLSA provides for Vigilance Committees (VCs) to be formed to address the crime, however, the VCs do not meet regularly as they are mandated to do, and members of the VCs are often unaware of their responsibilities. The cost for the VC members to travel to villages is not borne by the government, leaving no incentive for the VCs to carry out their duties.

Multifaceted Challenges Faced by Shelter/ Rehabilitation Homes

Lack of funds is the biggest issue faced by shelter homes trying to rehabilitate trafficking victims. Due to paucity of funds, they are unable to carry out vocational training programmes and rehabilitation facilities for the girls, making it difficult to reintegrate them into society. Shortage of staff (well-trained counsellors and officers) means that sometimes there is only one counsellor or officer in charge of more than 10–15 girls. This makes it difficult for them to cope and cater to the basic needs of every girl. Finally, the homes are unable to implement minimum standards of care for their girls. This leads to the girls not getting adequate rehabilitation facilities.

Exacerbated Injustices: Caste-based Response of PJS

The majority of bonded labour victims are from the SC and ST communities, and Section 3(1)(h) of the SC/ST Act can be applied to bonded labour cases. Our legal system, including the police, is anti-Dalit and anti-poor. The death penalty laws’ wrathful majesty, in blood-shot equality, deals the fatal blow on the poor not the rich, the pariah not the brahmin, the black not the white, the underdog not the top dog, the dissenter not the conformist.... The law barks at all but bites only the poor, the powerless, the illiterate, the ignorant. Justice V.R. Krishna Iyer28

Even though the quote mentioned relates to the death penalty, in reality it applies to the Dalits in all cases, whether they are a victim or an accused. The conviction rate for the offences under the SC/ST Act is abysmally low in Tamil Nadu.29 Interestingly, this is one of the offences in which Part III of the Constitution (Article 17) is called to punish.

Often the quick fix solution for acquittal is to increase the punishment, but this ignores the fact it should be preceded by fair and efficient investigation, prosecution, and adjudication. Even though there are problems in our criminal justice system, the problem is unique for offences under the SC/ST Act due to institutional apathy.

Apathetic Adjudication

The SC/ST Act has a lot of sections that look victimfriendly, but there is a clear lack of implementation in courts. The courts are very technical in their approach to adjudication of SC/ST offences, and the sad fact is that evidence is poor due to inadequate investigation and lack of good witness testimonies during the trial. Due to this, victims are denied justice by acquitting the accused. The poor conviction rate and impunity for the offenders suggests that a relic of the 1882 mindset (when the Indian Evidence Act was first enacted) is still lingering somewhere in the minds of Indian judiciary. The trial court judges need not wait for the police and prosecution to unfold the truth; the judges can pursue truth. Section 311 of Criminal Procedure Code allows the court to summon witnesses (if both the police and prosecutor fails to) and the judges are given the power to question any witness (under section 165 of Indian Evidence Act). All these measures are designed to promote ‘just decisions’. Unless judges pursue truth, justice will be elusive.

Usually, the Constitutional Court is insulated from such prejudices. The observation of the Supreme Court in Dr Mahajan’s case30 is not an isolated incident. This liturgy of ‘false case and hostile witness’ is reverberating even in the trial courts and by the police. Until the judicial system mainstreams social justice, even if parliament drafts the most comprehensive laws, justice will remain a mirage for the socially excluded. Justice V.R. Krishna Iyer31 once said, ‘A socially sensitised judge is a better statutory armour against gender outrage than long clauses of a complex section with all the protections writ into it.’ This holds true for the most marginalised, SC and ST, who are trafficked and exploited as bonded labourers.

Way Forward

This chapter has highlighted and analysed the difficulties that continue to present significant obstacles in the way of trafficking victims’ access to justice. Some recommended action points, for key stakeholders, that can enable access to justice for victims of human trafficking are listed further.

Government

  1. Provide quick compensation and rehabilitation for the victims of human trafficking. The Supreme Court of India has emphasised the need for timely, simultaneous, and effective rehabilitation of victims of bonded labour and noted that delays can result in conditions of re-bondage.
  2. The government’s commitment to prosecution of bonded labour cases needs to be coupled with a plan of action across states to improve PJS response and encourage state governments to report publicly on action taken to identify, release, and rehabilitate bonded labourers, and prosecute offenders.
  3. Reminders should be sent to state governments on various standard operating procedures to be followed in cases of bonded labour (BL), child labour, and commercial sexual exploitation (CSE).32
  4. The state governments should build institutions and fund psychosocial care for the victims of human trafficking.
  5. The government should cover reasonable expenses when the survivors leave their job and home to assist the police investigation and attend the trial.
  6. The state government should constitute, fund, and activate Vigilance Committees under the Bonded Labour System (Abolition) Act (BLSA) in every sub-division and district.
  7. Having more survivor-led events in order to bridge the gap between the government and the survivors.

Police

  1. Proactive and victim-centric approach in rescuing the victims of sex trafficking by the police.
  2. Proactive and victim-centric approach in identifying and rescuing the victims of labour trafficking by the District Administration and the police.

Legal Aid Authorities

  1. Involve para legal volunteers from the DLSA to assist the victims in engaging with the Public Justice System (PJS). Some of the steps could include preparing victims to depose in court truthfully, without fear, making efforts for vulnerable witness guidelines to be followed, and providing immediate assistance to victims in approaching police stations or ‘Witness Protection Cells’ under the Witness Protection Scheme, 2018, to file complaints when there is a threat from the perpetrators.
  2. Accompany victims to all their court proceedings.
  3. The DLSA should provide victims free legal aid.
  4. There should be greater coordination between the District Administration (DA), police, and the DLSA in assisting the victims.

Judiciary

  1. Encourage the use of video conference facility to testify in the court rather than make them travel long distances, especially for interstate victims.
  2. The courts should create an active fund so that victims who are summoned to testify are given travel and accommodation allowances.

Media

  1. Increased coverage by the media in order to highlight the scope and extent of bonded labour as a crime.

conclusion

A number of laws in India exist to protect people against the crime of human trafficking. Our analysis shows that while survivor confidence in the PJS may be low, incremental improvements in the response and handling of complaints by district officials and the police help create a virtuous cycle of more victim-centric support in terms of protection and raising awareness on the rights of survivors. It is time that all relevant stakeholders come together and work towards protecting the poorest and socioeconomically backward sections of our society from crimes perpetrated against them.

Notes:

  1. Response of Minister of State in the Ministry of Home Affairs, Government of India, Rajya Sabha Unstarred Question No. 1191, 9 December 2015, available online at this link (accessed on 28 January 2019).
  2. ILO and Walk Free. 2017. Global Estimates of Modern Slavery. Geneva: International Labour Organisation, available online at this link (accessed on 28 January 2019).
  3. Siddharth Kara. 2012. Bonded Labor: Tackling the System of Slavery in South Asia. New York: Columbia University Press, p. 236, who estimated that 1.1 crore Indians were in forced labour situations.
  4. Press Trust of India. 2016. ‘Govt looks to Rehabilitate 1.84 crore Bonded Labourers till 2030’, PTI, 20 July, available online at this link (accessed on 12 December 2019).
  5. Ministry of Home Affairs. 2009. Advisory on Preventing and Combating Human Trafficking in India. New Delhi: Government of India, p. 1, available online at this link (accessed on 28 January 2019).
  6. Ministry of Labour, Government of India, Annual Report 2000–2001, p. 181. Quoted in Human Rights Watch. January 2003. Small Change, p. 41.
  7. ILO. 2014. ILO says Forced Labour Generates Annual Profits of US$ 150 billion. Retrieved March 2016 from this link.
  8. ILO. 2012. ‘Global Estimate of Forced Labour’, Executive Summary, p. 1, available online at this link (accessed on 12 December 2019).
  9. UNODC. 2014. ‘Global Report on Trafficking in Persons’, 2014, p. 10, available online at this link (accessed on 12 December 2019).
  10. Sections 10, 11, and 12, Bonded Labour System (Abolition) Act, 1976.
  11. Article 23, Constitution of India, 1950.
  12. Sections 366A, 366B, 370, 370A, 372, and 373, IPC.
  13. Report, Increasing Access to Justice for Marginalized People: GoI-UNDP Project, p. 6, available online at this link (accessed on 30 November 2019).
  14. GoI – UNDP. Access to Justice Project Report, p. 4.
  15. Sriparna Ganguly Chaudhary. 2019. ‘The Winding Road to Justice in India’, Livemint, 18 January, available online at this link (accessed on 30 November 2019).
  16. Legal Services Authority Act. 1987. Sections 8 and 11.
  17. Hussainara Khatoon and Ors v. Home Secretary, State of Bihar, on 9 March 1979. AIR 1369, 1979 SCR (3) 532.
  18. Dasra. March 2018. Tipping the Scales: Strengthening Systems for Access to Justice in India, available online at this link (accessed on 30 November 2019).
  19. Under Section 161 of the CrPC, any police officer may inquire any person to determine the facts of the case.
  20. Cases had rescues in the jurisdiction of Bengaluru Urban, Bengaluru Rural, Tumkur, Ramanagara, and Hosur.
  21. Cases from the IJM Delhi office were from Bihar, Madhya Pradesh, Delhi, Rajasthan, Tamil Nadu, and Telangana.
  22. Advocates: Thomas Saravana, Ruth Anila, Acca Varghese Prabhu, and Rajkumar. Social Workers: Venu Gopal and Solomon.
  23. Some encouraging (but infrequent) stories exist of police officers who are sensitive in their approach to victims.
  24. ‘Disposed cases’ refer to cases that ended in trial courts, not including appeal periods.
  25. Raw data within IJM provided insights into one of the cases.
  26. The Freedom Fund and Thomson Reuters. Putting Justice First: Legal Strategies to Combat Human Trafficking in India, pp. 18–19, available online at this link (accessed on 30 November 2019).
  27. R.N. Bhaskar. 2014. ‘Policy Watch: Privileged Corrosion’. DNA India, available online at this link (accessed on 19 June 2018).
  28. Mohamed Imranullah S. 2017. ‘Conviction Rate in SC/ST Cases Low in TN’, available online at this link (accessed on 19 June 2018).