Human Trafficking by the Indo-Nepal Border: Assessment of Law for Prevention and Assistance

Introduction

The United Nations (hereinafter ‘UN’) defines human trafficking as the recruitment, transfer or harboring of persons through force or deception for the purpose of exploitation. The open and porous Indo-Nepal Cross-Border of nearly 1100 miles has unfortunately developed into one of the busiest locations of trafficking of humans in the world. The National Human Rights Commission of Nepal estimated 23,000 girls and women (more than 50 every day) being trafficked from Nepal to India in 2016 alone but experts believe these numbers are just a fraction of the real crisis. Moreover, India acts not only as a destination but also as a transit nation for Nepalese people being trafficked to Pakistan, Western Asia, and the Middle East.

Nepal is a long-standing state of migrant laborers, with payments from overseas sourcing about a third of its GDP. The history of trafficking in Nepal is also deeply associated with an economic business with India and resultantly, the flow of Nepalese migration heavily increased during the mid-1980s due to India’s enriched economy. The earthquake of 2015 further weakened the nation’s tourism sector and the overall economy- leading to a sharp rise in unemployment and poverty. The economic crisis combined with frequent natural calamities has made Nepali children and women highly vulnerable to human trafficking as they look for work to sustain their livelihood. While the major push factor behind this influx is poverty (nearly 25% of the populace lives below the poverty line), unemployment, illiteracy, social explosion, gender discrimination, etc. have also been identified as core causes. Consequently, Nepal has emerged as a “source country” for human trafficking- an offence that violates basic human rights and dignity- with thousands being forced into abuse, enslavement, bonded labor, and sexual slavery.

Anti – Trafficking Laws in India and Nepal

India and Nepal both have detailed laws to combat human trafficking.

Article 23 of the Constitution of India prohibits trafficking in human beings and all forms of forced labor and Article 24 prohibits employment of children in factories. Furthermore, the following Indian statutes address all possible illegal outcomes (such as prostitution, bonded labor, child labor, child marriage etc.) of human trafficking: Article 39 e & f of Directive Principles of State Policy, Sections 366, 366A, 366B, 367, 370, 370a, 371, 372, 373, 374 of Indian Penal Code1860, Section 6 of Bonded Labour System (Abolition) Act 1976, Section 3, 3A of Child Labour (Prohibition and Regulation) Act 1986, Sections 2 to 18 of Protection of Children from Sexual Offences Act, 2012, Prohibition of Child Marriage Act 2006, Sections 2 to 7&9 of Immoral Traffic Prevention Act 1956, Sections 75 to 79, 81, 83 to 85, 87 of Juvenile Justice (Care and Protection) Act 2000, Sections 18 to 20 of the Transplantation of Human Organ Act, 1994, etc.

The Constitution of Nepal specifically lists the Right to Freedom from Exploitation and also prohibits the trafficking of persons. Sections 3 and 4 of Nepal’s Human Trafficking and Transportation (Control) Act, 2007 (hereinafter ‘HTTCA’) similarly work for preventing cross border trafficking. Additionally, Section 16 of Children‘s Act 1992, Sections 3(1), (2) & 4 of Child Labour Prohibition and Regulation Act 2000 and Chapter 11(1), (2), (3) of Muluki Ain, etc. are instrumental in regulating human trafficking as well. Further, Nepal also exercises the right to extend jurisdiction over crimes of human trafficking that occur outside its jurisdiction. The Treaty of Extradition between the Government of India and the Government of Nepal (hereinafter ‘India-Nepal Extradition Treaty’) allows for the extradition of an Indian citizen who broke the law whilst in the territory of Nepal in order to efficiently initiate his/her court proceedings under Nepalese jurisdiction. Furthermore, in the case of Urmila Thapa Magar[i], the Supreme Court of Nepal stated that the alleged offence of trans-border human trafficking would be proven if- Firstly, human trafficking was proven and Secondly, it was established that the motive behind the migration from one country to another was human trafficking.

In addition to their respective domestic laws for combating human trafficking, both India and Nepal are also bound by International Obligations against the crime. India and Nepal both agreed with the United Nations Convention against Transnational Organized Crime and its protocol for effectively addressing the trafficking of human beings. Both nations have also signed regional conventions in this regard such as the SAARC Convention on Regional Agreement for the Promotion of Child Welfare in South Asia, SAARC Convention on protecting and Combating Trafficking in Women and children for prostitution 2002, Convention on the Elimination of all forms of discrimination against women etc. Significantly, Article X of the SAARC Convention 2002 provides that all member countries must extend a variety of services to the victims of trafficking belonging to another SAARC nation.

Failure of the Legal Mechanism in combating Human Trafficking

The laws against Human Trafficking have glaring loopholes that allow perpetrators to easily deceive the system. For example, while the HTTCA clearly bans the trading and purchasing of humans, it fails to criminalize trafficking for forced labor except for prostitution. Additionally, the statute is condemned for identifying sex work as sex trafficking and for insufficient provisions for remedy and effective protection for victims who file cases against their traffickers. Furthermore, Nepal does not adhere to the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (hereinafter ‘Palermo Protocol’) that is considered the principal international legislation against Human Trafficking. The Treaty of Peace and Friendship between the Government of India and the Government of Nepal (hereinafter ‘Treaty of Peace and Friendship’) allows unrestricted movement (i.e. no immigration process) of nationals of both countries, simply with some identification (Children below 10 require no papers at all). Perpetrators of the crime easily exploit the 14 checkpoints regulating the border since proper legal procedures to differentiate possible trafficking victims from legitimate migrants are not suitably institutionalized.

The lack of effective enforcement of laws against human trafficking acts as one of the toughest challenges to preventing the crime in Nepal. Nepalese authorities consistently fail at keeping tabs on their citizens. Moreover, the number of unreported cases is high due to the immediate deportation of victims to their homelands after trafficking raids in India- prior to providing evidence against traffickers. Nepal also lacks jurisdiction over brothel proprietors in India, who act as one of the strongest lobbyists of human trafficking- making legal implementation difficult.

Devastatingly, Nepalese victims of India-Nepal cross-border trafficking often end up in a similar condition to that of refugees in India- where they are in a foreign land without any of the legal protections enshrined on citizens of India. Due to a lack of proper identification and documents, the law enforcement agencies in India often fail to provide proper rehabilitation for the affected. According to statistics conveyed by anti-human trafficking activists; victims typically avoid filing cases due to the restricted legal definition of human trafficking and its incompetence to treat illegal migration-related cases as human trafficking cases. Even if they file cases, only 50% of these are settled and solved annually. Further, witness protection and privacy in such matters lack definite legal provisions. Ergo, the continued failure of either state to effectively intervene has resulted in cross border trafficking between the two countries becoming a major human rights concern.

Currently, the COVID-19 pandemic has worsened the conditions of human trafficking victims as chances of escaping are reduced, and finding aid is much more difficult due to restrictive movement, diversion in law enforcement agencies, and minimized public and social assistance. With India under lockdown and its borders sealed, some victims are unable to return back to their homes in Nepal, while some face delays in legal proceedings, and others are in danger of further abuse or neglect by their captors.

Conclusion: The way forward

The elimination of this ‘modern-day slavery’ across the Indo-Nepal border requires much more intensified efforts by both countries. Firstly, appropriate legal procedure dealing with cross border trafficking factors such as state security, border management and inter-state relationships needs to be established and efficiently implemented. Additionally, human trafficking and foreign employment laws should be aligned to properly differentiate between legitimate migrants and possible victims of this trafficking. Secondly, both India and Nepal must share jurisdiction in cases involving Nepalese victims trafficked to India, since the crime of trafficking occurs not just at the moment of procuring the victim, but also when he/she is traded and pushed into appalling fates such slavery, prostitution and abuse in the destination country. Thirdly, destination countries must contribute to their responsibilities for the rehabilitation and protection of victims of the horrific crime. Fourthly, proper statutes ensuring the protection of rights of Nepalese victims, irrespective of their location around the globe, should be constructed. Fifthly, special laws to regulate a known zone/ hotspot of human trafficking victims should be enacted. Lastly, stringent penalties on convicted traffickers must be implemented to create fear in the minds of perpetrators by setting a precedent against the offence.

References

[i]Urmila Thapa Magar v Krishna Prasad Pudasaini, Criminal Appeal no 1610 of the Year 2051 BS.

ABOUT THE AUTHOR(S)

Nayoleeka Purty is a 2nd-year law student at the Rajiv Gandhi National University of Law, Punjab, India.