Innocent Victims:
Trafficking in Women and Girls
across Nepa - India Border

By Gauri Pradhan

A. Introduction:

A1. Total Area of the Country:
147,181 (Sq. Km.)

A2 Total Population Of Nepal:
2.2. Million

A3 Total Child Population below 18 Years:
12.0 Million

A4 Child Labour at Risk:
About 2.6 million

A5 Street Children:
About 5,000

A6 Trafficking and child prostitution:
About 32,000 in India and about 5,000 children below 16 years within Nepal

A7 Children in debt bondage:
Most of domestic child workers, carpet workers, restaurant boys are children in debt bondage besides agriculture bonded labour

A8 Migrant working children:
Every year thousands of children are migrated from villages to the different cities of Nepal and India. Many of them are working there as rag pickers, domestic child worker sand carpet workers etc.

A9 Child marriage:
34% of total marriage is held with children below 16 years of age. About 7% of children below 10 years of age are also engaged for the traditional marriage.

A10 HIV/AIDS:
An estimation of HIV/AIDS infected people in Nepal is 15,000

B. Magnitude of Problem:
B1 It is estimated that about 200,000 Nepali women and children who are trafficked and sold into India over the period of year are working as the forced prostitutes in brothels in different parts of India.

B2 It is estimated that there are at least 20% children under 16 years who are sold and trafficked for prostitution. Some of the children who are trafficked and sold into the brothels are as young as 10 years old.

B3 Most of women and children who are trafficked into India are come from mountain areas of Nepal and they are cheated and deceived by traffickers using different tricks, fake attractions, and fraud marriage.

A majority of girls who are the victims of trafficking and forced prostitution used to work as weavers in the carpet factories both in Nepal. Many researches and case studies in this regards have revealed that carpet industries in Nepal are used as the safest transit place for trafficking by the traffickers.

B4 Nuwakot District: A Glimpse of Trafficking in Girls

VDC: Village Development Committee Source: Local VDCs/Nuwakot, February 18, 1996

B5 There are about 500 miles of open border between Nepal and India, while there are about 30 entry/exit points. However, the open Das Gaja in the southern part of Nepal has also provided an informal entry/exit point for people.

Main Exit Points to India:

East:
Kankarbhitta
Jogbani
Pashupati Nagar
Koshi Barrage
Bhadrapur
Lagma
Gaur
Bhitta
Shikharbaas
Chhapkaiya

South:
Jaya Nagar
Kunauli
Mauwa
Bhagawanpur
Dubi
Raxual
Susta

West:
Jamuna
Belia
Mahendra Nagar
Krishna Nagar
Koilabaas
Banabasa
Kanchanpur
Gulariya
Belauri
Bhajani

Source: CWIN

B6 An estimated figures of Nepali women and child victims who are working in different parts of India:

Source: Informal Estimation

B7 A majority of women and girls who are the victims of trafficking and selling in girls are come from the socalled low caste community, poverty stricken areas and urban poor areas where the level of social consciousness.

B8 The very mention of Bombay conjures up images of good jobs, success, money and glamour. The desperate people of the villages are more than willing to try their luck, thus becoming the perfect target for traffickers. For many people in Nepal, India means Bombay, and Bombay is their dream land where they dream to put an end to their lives of poverty and hardship.

B9 Torture practised against trafficked girls in the brothels

- Physical assault and torture
- Rape and Sexual Abuse
- Starvation
- Isolation in dark rooms
- Injuries
- Beating with hot iron
- Forced use of drugs & drink
- Multiple rape
- Mental torture - Forced abortions
- Burning with cigarette butts
- Terrorised by gangs and criminals

B10

Many girls accept the life as it is; some try to escape, only to land in another brothel. A few are rescued but are rejected by their families and society. Many land in hospital with venereal diseases. Many die young. A handful of them become brothel owners themselves after their retirement. The future is dark and brutal.

C. The Roots of the Problem:

Review and Assessment

C1. Social - Cultural Domain Social Unawareness

Our social-cultural domain is entangled with traditions superstitions and male chauvinist concepts that encourage discrimination against daughters. Unless daughters are provided with equal opportunity and initiatives are taken to ensure overall development of women, this practice will continue to exist and grow. Ultimately our sisters and daughters will be compelled to survive under injustice and exploitation.

For years, our mind has been preoccupied with superstition and evil practices. Unless we get rid of exploitative thinking and activities through good social-cultural processes, the evil practices such as the Badi-Badini, Deuki, Dattak and Jhuma systems will continue to exist. Our children and women must be liberated from such social-cultural restrictions. This is the need of hour.

C1.1 Caste System
C1.2 Child Marriage
C1.3 Traditional Prostitution/Religion
C1.4 Family Break-ups
C1.5 Tradition of Nurshing Mother
C1.6 Lack of Social Awareness
C1.7 Degrading Social Status of Women
C1.8 Jari:Traditional Marriage Practice
C1.9 Migration
C1.10 Neglected Status of the Girl Children

C2 Economic Exploitation

C2.1 Unfair distribution of wealth/lack of economic justice
C2.2 Unequal land holding system
C2.3 Weakening women’s situation in economic decision
C2.4 Denial of women's rights to parental property is also a violation of human rights.
C2.5 Lack of training, skill education and employment

C3 Lack of Political Commitment:

C3.1 Issues related to women and children are not prioritised into the political programme.

C3.2 Lack of adequate laws for the protection and prevention of children who are the victims of trafficking and selling.

C3.3 Ineffective implementation and enforcement of the laws and policy regarding the rights of women and children.

C3.4 Lack of implementation of national regional and international commitments of HMG/Nepal on Human Righs Issues.

C3.5 Lack of clear visions and understanding for the protection of the Rights of the Child.

C4 Open Border

Passport to the hell. Evidence has proved that the age- old friendship border between Nepal and India has unfortunately become a golden gate for criminals. For many innocent children and women of Nepal, this has been proved to be the passport to Hades. Trafficking in women and children in Indo-Nepal border mainly involves the commercial sexual exploitation, however, issues like child labour, bonded child labour and organ transplantation are also covered here.

C5 Growing Crimes against Women and Children

Statistics have shown that most of the crimes in the world have been targeted against women and children. In Nepal as well, crimes against women and children are increasing. Crimes like rape, child prostitution, child marriage, child servitude, kidnapping of children, and exploitative child labour are occurring in every nook and corner of the country almost daily. Despite their illegality, such activities exist in our society as fait accompli. Until crimes and violence against women and children are eliminated, their rights and dignity cannot be established and restored. For this, necessary measures should be taken to fight against the crimes against women and children.

D. Laws and Policy against Trafficking in Women in Nepal

Constitutional Provisions against Human Trafficking:

Under Article 20(1), the Constitution has guaranteed for all citizens the right against exploitation. As such, the article explicitly prohibits " the traffic in human beings, slavery and serfdom or forced labor in any form." Any act contravention to this provision is, therefore, punishable as a criminal offence under the existing law. Pursuant to the constitutional provision, the crime of trafficking of human being is rendered a criminal offence against the state.

Definition of the Crime of Trafficking in Women by Civil Code (Muluki Ain), 1964:

Section on Human Trafficking of the Civil Code, (Muluki Ain) 1964 defined the traffic in human being as a crime. Clause 1 of this section prohibits the act of taking any person of persons, by fraud or incitement, out of the territory of the country with an intention of selling. The same clause has stated that such an act as punishable by 10 to 20 years of imprisonment, and also prescribed the same punishment for those involved in buying the person or persons, provided that such culprit is available in the territory of Nepal.

Provisions against Trafficking in Women as stated by Human Trafficking (Control) Act, 19986:

This Act was enacted to cope with the growing menace created by the crimes of trafficking in women and girls for prostitution. The section 11 of this Act stipulates that no other law apply in matters that are covered by this act. The Human Trafficking Act, 1986, is, therefore, a specific law relating to crimes of trafficking in human being:

Section 4 of the Human Trafficking (Control) Act prohibits the following acts as the crime of trafficking in human being:

- Selling of a human being for any purpose
- Taking any person to foreign territory with an intention of selling
- Involving any woman in prostitution by enticement or allurement or fraud, or threat or coercion, or by any other way or means; and
- Abetting or assisting or conspiring and making attempt to carry out any of the above mentioned acts.

Punishment against Human Trafficking by Law:

The above mentioned acts have been made punishable by section 8 of the Act as follows:

- 10 to 20 years of imprisonment for the crime of selling a person or persons
- 5 to 10 years of imprisonment for the crime of taking a person to a foreign territory with an intention of selling
- 10 to 15 years of imprisonment for the crime of forcing a woman into prostitution, and
- 5 years of imprisonment for the crime of abetting or assisting or conspiring, or making attempt to accomplish the above mentioned acts
- Sub-section of the section 8 provides for the pecuniary penalty too. As per the provision, the person convicted of the crime of selling human being is penalised, in addition to the imprisonment, with an amount of money equivalent to the amount involved in the transaction. The act, however, does not provide for any punishment or pecuniary penalty for the person engaged in the crime of buying.

Special Provisions of Human Trafficking Act, 1996:

This Act is a piece of legislation that makes provisions for stringent penal system. Considering the complexity of the situation that happens to be associated in this kind of crimes, the Act has made a special provision of shifting the burden of proof on the defendant. As such, the accused person has to discharge the evidentiary obligation to prove his innocence.

Procedures and Jurisdiction:

The State Cases Act, 1993, has defined the crime of trafficking in women and girls an offence against the state. Apparently, it obliges the state to investigate and prosecute the offence by using the state machinery. As provided by the Act, the investigation is initiated by the complaint about the offence by the victim or any person having knowledge of such crime. The complaint of the victim is recorded by the concerned Government Attorney, the Prosecutor, and by the order of the district court judge. The victim then becomes an important witness of the prosecutor.

Extra-Territorial Jurisdiction:

The Human Trafficking (Control) Act, 1986, is one of the very few statutes that recognises the principle of extra-territorial jurisdiction of the state of Nepal. This Act stipulates to have the extension of the jurisdiction in any crime under this Act beyond frontiers of Nepal. As such, any crime relating to the trafficking in women and children having taking place in the foreign territories is recognisable in the courts of Nepal.

Inadequacy and Ambiguities of the Laws:

Human Trafficking (Control) Act, 1986 has suffered a very serious weakness in terms of Definition as it fails to bring within its ambit the act of separating any person from the legal guardian with an intention of trafficking for prostitution. Hence, no crime is established against someone who is found engaged in separating women or girls from their guardians, but has not yet taken the victim out of the territory of the country. Similarly, the Act has no provision of punishment to the culprit involved in the purchase of the women and girls for prostitution.

The victim of trafficking is an important witness of the prosecutor during the trial. However, there is no place for protecting such witness arranged by the state. Apparently, the victim is often exposed to the danger of being threatened or forced by the culprits to change the statements or to become indifferent to the case. This has been seen in quite a number of judgments of the courts, in which the accused persons have been released on the ground that the victim failed to turn up to the court.

Violence against Women and Ninth Five Year Plan:

Despite so many national, regional and international commitments of HMG/Nepal, the issue of trafficking in women and children has not been properly addressed by the Ninth Five Year Plan ( 1997-2001). What has mentioned in the Plan is to protect human rights of women by taking preventive, protective and rehabilitative measures through the co-ordinated process among the programmes and activities of Government, NGOs and Local agencies to combat violence against women.

Poor Enforcement of the Laws:

Trafficking in women and children is one of the most alarming problem in the Nepali society over the years. Every year, 5000 to 7000 girls are estimated being trafficking into India and other third countries. However, the enforcement of the Human Trafficking (Control) Act 1986 seems very poor. As per the official record of HMG/Nepal only 150 cases were reported in the fiscal year 1994/95.

Though this is one of the most alarming problems across Indo-Nepal border, both the Governments of India and Nepal are not very serious to control and prevent the increasing trafficking and selling in girls. It is noted that both Nepal and India are the state parties of CRC, CEADAW and Convention to Suppress the Trafficking and Forced Prostitution, however, never before there is any formal bi-lateral talk in-between the Government of India and Nepal.

Towards the formulation of New bill against Trafficking in women and Children in Nepal:

A task force has been formed to draft a new bill against trafficking in women and children as recommended by a national consultation workshop held in Melamchi in April 1997. The task force of 20 members comprising representatives from all the concerned Ministries, Judges and Lawyers was constituted to study and draft a new bill against trafficking in women and children. The proposed draft bill is expected to clarify and cover the following issues:

- Clear definition of the crime of trafficking in human beings
- Punishment for persons engaged in enjoying prostitution
- Punishment for women engaged in voluntary prostitution
- Punishment for act of separating a person from his/her legal guardians with an intention of trafficking
- Compensation for the victims of trafficking or prostitution from offenders and the state
- Closed camera trial of the case, and
- Protection of the victim and witness by the state.

E. Back Home from Brothels:

A case Study of Advocacy in Action

E1 Rescue Operation of Brothels by Bombay Police:

In the pursuance of the decisions taken at a meeting held by the chief secretary on February 1, 1996, 547 young girls had been rescued from the red light areas in Bombay on February 5, 1996, in which 238 girls were identified as Nepali. The government of Maharastra brought all rescued girls before the Juvenile Justice Board. The Juvenile Justice Board remanded them to various remand and protection homes in the state. This information was brought into the attention of our Prime Minister during his visit to Bombay by the government of Maharastra, An informal source says, the High Court ordered the government to send back them to their respective states for family reunionisation and rehabilitation.

E2 Situation of the Rescued Girls in Remand Homes:

Remand Homes/Reception Homes

where the rescued girls were kept as per the decision of the Maharastra High Court

S.N Name of the Centres Major Minor

1. Kasturaba Mahila Vasatigriha, Deonar 6 17

2. Navajeevan Vasatigriha 21 33

3. St. Catherine Home x 62

4. Observation Home x 12

5. Asha Sadan x 48

6. Certified School, Pune x 29

Total 27 201

E3 Advocacy in Action For the Protection of the Rights of the Victims:

E3.1 A meeting of social organisations, particularly working on the issues of crime against women and children was organised and a task force consisting of five persons was set up on March 1, 1996. A detailed plan of action pertaining to transportation, medical check-ups, counseling, and rehabilitation was submitted to the Prime Minister at his office in Singh Durbar. Prime Minister expressed his commitment to form a task force in order to carry out action for the protection of these girls. However, nothing happened in this regard on his part.

E3.2 A delegation consisting of 15 social organisations called on Prime Minister Mr. Sher Bahadur Deuba on March 6, 1996 and submitted a letter of memorandum to take necessary measures to protect the rescued Nepali girls from the red light areas in Bombay. A reminder letter was sent to the Prime Minister to draw his attention to this issue, but there was no response from his side.

E3.3 Social organisations and government officers in India were contacted to help protect these rescued girls from the brothels.

E3.4 The delegation team from social organisations also called on Minister of Health, Minister of Women and Social Welfare and Minister of Foreign Affairs on March 26, March 29 and April 14 respectively. All ministers only gave promises.

E3.5 According to the informal sources, the government of India sent a letter to the Ministry of Foreign Affairs regarding the transportation of rescued girls from India to Nepal and HMG/Nepal responded asking names and addresses of the girls who had been put into different reception centres in Bombay.

E3.6 Social organisations working for the rights, welfare and dignity of these children at risk offered their services to HMG/Nepal to help protect these girls. They met together and decided to take second phase programme to put political and moral pressure on the government.

E3.7 On March 22, 1996, the social organisations working in the field of women and children organised a press meeting and issued a press statement urging government to take immediate action for the transportation, welfare and rehabilitation of these girls in the difficult circumstances. Otherwise, they warned HMG/Nepal for the second phase programme for political pressure.

E3.8 International Call to Protect the Girl Children at Risk

E3.9 Trafficking in Women and Stockholm World Congress on Commercial Sexual Exploitation of Children

E3.10 NGOs initiative for formulating National Policy against Trafficking in Women and Children

E4. Transportation of the Girl Children at Risk

E4.1 No positive outcome has been seen even after five months long continuous dialogue with the different Ministers and Officials of the His Majesty’s Government of Nepal.

E4.2 Within this period, we have contacted number of national agencies including police, journalists, political parties, human rights organisations and social Organisations.

E4.3 In the initiative of the National Networking of Organisations working against AIDS, we organised a press conference in the auditorium hall of the Nepal Bar Association. By that time, 5 girls had been dead in the remand homes of Bombay, 32 runaway and almost all girls were psychologically depressed.

E4.4 Nepali NGOs group decided to submit a petition to the Maharastra High Court for the recovery and release of these girls. Upon the request and appeal of the NGOs from Nepal, the Chief Justice decided to send home those who so wished.

E4.5 The first batch of 96 girls arrived on July 22nd and the second batch of 28 girls arrived on July 26 1996. They were jointly received by the NGOs and the special mission of the Police Headquarters. These girls were rehabilitated in seven different centres run by ABC-Nepal, CWIN, WOREC, Maiti-Nepal, Nawajyoti Griha, Stri-Shakti, and Shanti Punarsthapana Griha.

E5 Rehabilitation in Community: Changes & Challenges

E5.1 Recovery of the Rescued Girls

E5.2 Interim Residential Care, Medical Care and Psycho-social Counselling

E5.3 Family Counselling and Field Works

E5.4 Family Re-unionisation and Community Rehabilitation

E5.5 Training/Follow up and Monitoring

F. The Way Ahead:

F.1 The Challenges:

F1.1 Lack of reliable information and poor level of social awareness.
F1.2 Lack of victims support programmes.
F1.3 Lack of coordination by HMG/Nepal.
F1.4 Lack of proper investigation process.
F1.5 Lack of law enforcement and political commitment in action.
F1.6 Lack of women's empowerment programmes in action.
F1.7 Lack of enough community conscientisation programme for the promotion and protection of the rights of women and children.
F1.8 Growing rural migration to the cities.
F1.9 Lack of economic alternatives for victims
F1.10 Lack of bilateral initiatives between Governments of India and Nepal to combat trafficking in women and children.

F.2 The Need for Change:

F2.1 Law on crime against women and children
F2.2 Independent council on women and children
F2.3 Alliance of social organisations against crime on women and children
F2.4 Special women and children's cell in Police Department
F2.5 Bilateral initiatives of Nepal and Indian governments in order to fight against child traffickers and monitor border security
F2.6 Victims' support programme
F2.7 Community policing
F2.8 Social awareness programmes against child sex abuse and exploitation
F2.9 Media awareness to deal with the cases of the child victims
F2.10 Protection from Re-victimisation

F3 Lessons Learned:

F3.1 Advocacy in Action
F3.2 Pressure and Partnership
F3.3 Intervention for the Change in Attitude
F3.4 Question of Re-victimisation
F3.5 Psycho-social Counselling
F3.6 Fight against the Crime
F3.7 No Rescue Operation without Enough Home-work
F3.8 Conflict Management
F3.9 Community Rehabilitation of the Victims
F3.10 Empowerment in Action

F4 Strategies for Intervention:

F4.1 Social awareness
F4.2 Employment and Self-reliance
F4.3 Co-ordination and alliance building work
F4.4 Law Reform and Law enforcement
F4.5 Systematic Crime Investigation
F4.6 Border security
F4.7 Information and Communication for action
F4.8 Action against Crime on Comen and Children
F4.9 STDs and HIV/AIDS
F4.10 Bi-lateral/multi-lateral Political Agenda

F5 Victims Support Programme

F5.1 Rescue of Child Victims
F5.2 Transportation of Girls from India to Nepal
F5.3 Counseling, Medical Rehabilitation and Housing
F5.4 Compensation, Rehabilitation and Social integration
F5.5 Protection of from Re-victimisation

G. Conclusion

The elimination of trafficking in girls for prostitution is a very important agenda at present. However, It can not be possible without building a strong social movement on the ground level, because the fight against the trafficking in women and children is a war against the exploitation, injustice and crime created by the strong underworld networks by using the given situation of poverty, starvation for commercial sexual exploitation in the flesh trade.

Looking at the present developments on the crimes against women and children, one should realise that this problem cannot be resolved in isolation. Facts have revealed that this problem has been interlined with the growing socio-economic, cultural and political exploitation in the country. If we are really determined to fight against child sexual abuse and exploitation, we should seriously review and examine the roots and causes of this problem, its impact and results. In our context, it is also closely interlined with the issue of the Indo-Nepal open border situation. How can we review this situation and interlink it with the political issue ? Shall we call the HMG/Nepal and Indian Government for bilateral initiation for the prevention and control of the trafficking in girls.? I think this is a right time to call for discussions about the security in the border areas ? We all should be serious in this matter and draw the attention of all those governmental and non-governmental organisations that are trying to do something for the protection and promotion of the rights of the child.

Trafficking in women and children for the commercial sexual exploitation is one of the most inhuman issues existed in our society. If our children are sold out in front of us how can we expect a better future in the days to come ? This is not only shame for us but also a challenge to our democracy, human rights and security. If we wish our children be liberated from the harms and exploitation, we should not wait for tomorrow. We have talked a lot on the issues of children at risk. But time has come to translate our words into action.