FORMULATION OF A NEW INTEGRATED ACTION PLAN TO COMBAT TIP

UNCLAS SECTION 01 OF 02 KOLKATA 000066 SIPDIS SIPDIS DEPT FOR G/TIP - GPATEL, JSIGMAN; SCA/INS - SGANDHI; SCA/RA - LLEE E.O. 12958: N/A TAGS: KWMN SOCI KCRM PHUM PREL IN SUBJECT: FORMULATION OF A NEW INTEGRATED ACTION PLAN TO COMBAT TIP OFFERS OPPORTUNITIES TO INFLUENCE NATIONAL STRATEGY ¶1. (U) Summary: On February 1-2 approximately 50-75, lawyers, judges, NGO activists, and government officials from West Bengal, Orissa, Bihar, and Jharkhand participated in the "Eastern Regional Workshop to Discuss the Proposed Plan of Action to Prevent and Combat Human Trafficking" organized by the West Bengal Commission for Women. The seminar, held at Jadavpur University, was an opportunity for various anti-Trafficking in Persons (TIP) stakeholders to draft recommendations for the National Commission for Women (NCW) and Ministry of Women and Child Development (MWCD) Integrated Plan of Action to Prevent and Combat Human Trafficking. The new plan is being prepared to minimize the ad hoc approach taken by various stakeholders in following their own plans of action at local levels. Participants in the seminar broke out into two sub-groups: one discussing Law and Law Enforcing Agencies (the Law Group) and the other discussing Rescue, Rehabilitation, and Reintegration. The discussion about creating new comprehensive legislation suggests that we have an opportunity to provide input in a number of areas to improve India's legal framework for fighting TIP. End Summary. Calls for Rewriting the Law -------------- ¶2. (U) The Law Group called for a Comprehensive Anti-Trafficking Law that incorporated prosecution of offenders, protection of victims and witnesses, and prevention of trafficking. The Law Group, headed by a retired Kolkata High Court Justice and the Deputy Director for Prosecution, stressed that existing legislation, such as the Immoral Trafficking and Prevention Act (ITPA) and the Indian Penal Code (IPC) do not fully take into account the "various stages" of trafficking -- defined as prosecution, protection, and prevention. The group felt that adding amendments to existing laws would only confuse law enforcement agencies. ¶3. (U) The group also cited problems with the definition of trafficking, such as the meaning of "transportation" for trafficking, no specific definition of the term "trafficking" in ITPA itself, and the lack of culpability of "accomplices" under the law, and suggested using the definition in the UN Protocol as a remedy. They also felt that "attempted trafficking" merited inclusion under trafficking as a separate crime. The panel further called for a more expansive definition of "trafficker" that in section 5(a) of ITPA, because it felt that defining trafficker only in terms of commercial sexual exploitation goes against Article 23 of the Indian Constitution which prohibits trafficking for all purposes. ¶4. (U) Addressing the protection of witnesses and victims, the Law Group highlighted the use of trial testimony through video conferencing and other measures to ensure that victims and accused are kept apart (they are sometimes transported to the police station and the court in the same vehicle). The decision of the Supreme Court of India in the 2004 Sakshi case regarding child victims and witness testimony could be adopted as a model. ¶5. (U) The Law Group's approach to prevention and prosecution took into account links between missing persons and victims of trafficking, and suggested cross-referencing of suspected trafficking victims with missing persons lists. There was strong sentiment in favor of confiscating the assets of traffickers, including real property and vehicles, and placing the burden of proof on the accused to prove that assets were not linked to trafficking. ¶6. (U) The Law Group recommended that the Special Courts, provided under ITPA, be set up without delay, and that the new legislation should provide for a 6-month time limit for courts to dispose of TIP cases. This essentially "fast-track" would give the legislature, not the judiciary, the opportunity to determine priority cases. (Comment: Currently, judges have wide discretion in determining which cases to fast-track, and often prioritize cases involving substantial bodily injury or other "serious" offenses. Trafficking cases have not yet reached this same level of seriousness in most judges' view. Given resource constraints, however, six months may be an unrealistic time frame. End Comment.) ¶7. (U) Efforts to prevent the prosecution and punishment of trafficking victims and/or prostitutes sparked a strong debate, with representatives of prostitutes' groups such as the Durbar Mahila Samannoy Committee calling for amendment of Section 7 of ITPA, which punishes prostitutes. There was also argument over the use of the term "sex worker" in the existing legislation. Comment -------------- ¶8. (U) The Law Group's recommendations typify the belief that KOLKATA 00000066 002 OF 002 there are too many loopholes in existing laws that hamper successful prosecution of trafficking cases. It appears that traffickers and their lawyers are able to manipulate the legal process or at least slow it down enough to effectively prevent convictions. There is no perfect law, however, and a trafficking case won't build itself. Prosecutors, and more importantly, judges, must be convinced of their ability to use existing laws to analyze the facts of each case within the spirit of the laws on the books even while changes are made to improve the laws against trafficking. ¶9. (U) The fact that the MWCD is trying to rewrite the Integrated National Action Plan does indicate that there is disparity across jurisdictions about how to apply the law. This is an excellent opportunity for Mission India to consult with GOI interlocutors and address some of the legal issues by providing input, particularly where it involves victim and witness protection, methods for obtaining usable victims' testimony, and increased law enforcement inter-agency cooperation. As the process of taking recommendations for updating the Integrated Plan is so inclusive at this initial stage, USG input would be well-received and USG anti-TIP positions could be incorporated into the final product. Post will pass on a copy of this Panel's final recommendations to the Department and Embassy New Delhi when it becomes available. JARDINE