MUMBAI'S ANTI-TRAFFICKING COURT REPORTS IMPRESSIVE FIGURE OF

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SUBJECT: MUMBAI'S ANTI-TRAFFICKING COURT REPORTS IMPRESSIVE FIGURE OF
OVER 81 CONVICTIONS

REF: A. 09 MUMBAI 89

B. 09 MUMBAI 305

C. 09 MUMBAI 431


1. (U) Summary. In just over a year of operation, the
anti-human trafficking court in Mumbai has disposed of a large
backlog of trafficking cases, and improved the conviction rate
for traffickers. In 2009, the court adjudicated 438 cases, and
recorded convictions in 81 cases, with more than one defendant
convicted in most cases. The court also ordered the closure of
11 brothels. The transfer of many of Mumbai's trafficking cases
to a single court has also helped identify trafficking patterns
and repeat offenders, providing key analysis for law enforcement
agencies. India would benefit from more urban anti-trafficking
courts like Mumbai's which has made an impressive impact on
enforcing anti-trafficking legislation in one of India's biggest
cities. End Summary.



Anti-Trafficking Court Established

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2. (U) The anti-human trafficking court (ATC) was established in
Mumbai in August 2008 to hear criminal cases under the Immoral
Trafficking Prevention Act (ITPA). The Act criminalizes a
number of prostitution and trafficking-relating activities,
including living on the proceeds of the prostitution of another
person, procuring or taking a person for prostitution, detaining
a person in a location where prostitution is carried out, and
public solicitation. Judge Swati Chauhan is the sole judge of
this new court.



2009 Statistics Show Impressive Conviction Rates

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3. (U) Chauhan told Congenoff that at the beginning of 2009, her
docket included 805 cases. Over the course of the year, 238 new
cases were filed in her court. As of January 2010, she had
resolved 438 cases. Chauhan reported that the court secured
convictions of pimps, touts or other traffickers in 81 cases.
The court records data per case, not per defendant, Chauhan
explained, and often two or more defendants were convicted per
case. Of the cases resolved, 183 were closed without
prosecution, often where the police were not able to produce or
locate witnesses or defendants. Cases in which the defendant
had absconded, such as a case from 1983 where a brothel keeper
fled back to Nepal, were closed under section 258 of the
Criminal Procedure Code which allows charges to be re-filed once
the missing evidence or witnesses can be produced. Many of the
closed cases involved solicitation charges against trafficked
women under section 8 of the ITPA. In these cases, Chauhan
allowed the women to plead guilty and pay a fine of 100 rupees
(USD 2),which saves them the expense of hiring attorneys for
multiple court appearances and facing potential jail time. The
anti-trafficking court also ordered 11 brothels seized and
closed. (Comment: The police, especially those who have
attended anti-human trafficking courses, have been using section
8 less frequently in recent years. The Indian cabinet's
proposed amendments to ITPA also include deletion of the
section. End comment).




4. (U) With the backlog of old cases virtually eliminated,
Chauhan predicted that judgments in ITPA cases would continue to
rise. She reported that in December 2009 she disposed of 30
cases, her highest monthly record so far. Chauhan noted that
many cases involve multiple defendants, only a few of whom are
involved in ITPA violations, leading to high acquittal numbers.
In one case, police raided a bar and arrested 168 people,
regardless of culpability, resulting in 152 acquittals. Chauhan
told Congenoff that she had counseled the police to make arrests
more judiciously. Overall, she and the anti-trafficking NGO
International Justice Mission (IJM) praised the Mumbai police
for its anti-trafficking efforts. Chauhan said that the police
initiated 90 percent of the anti-trafficking court's cases, with
only ten percent stemming from NGOs and civil society groups.

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Conviction Data for Trafficking Cases Elusive

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5. (U) Statistics from the anti-trafficking court reflect only a
subset of all anti-trafficking cases in Mumbai. Only arrests
made under the ITPA within the Mumbai city limits go before the
court. Chauhan explained several other reasons why her court
handles only a portion of the trafficking arrests across Mumbai.
First, she noted that where a more serious crime is also
involved -- such as kidnapping, weapons charges, murder or rape
-- the case must be transferred to the higher Sessions Court.
In one case, for example, the defendant was accused of drugging
and taking an 18-year old victim to Mumbai from Bangalore.
Chauhan raised the charges to include kidnapping and wrongful
restraint, and transferred the case to the higher court.
Chauhan transferred 22 such cases to the higher court in 2009.
(Note: IJM reported convictions in two other cases tried in
Mumbai Sessions Courts rather than the in the anti-trafficking
court: (1) the Sewri District Sessions Court convicted four
traffickers in December 2009 and (2) the Churchgate Sessions
Court convicted four traffickers in December 2009. End Note.)
Second, courts at the level of the anti-trafficking court may
only issue sentences of up to seven years, while the ITPA
authorizes sentences of up to life imprisonment for certain
serious offenses. Where the case appears to warrant a longer
sentence, Chauhan refers the case to the Sessions Court.




6. (U) Chauhan noted that in many human trafficking cases, the
police are not able to meet the procedural requirements of the
ITPA, and choose instead to make arrests for public nuisance or
other charges under the Bombay Police Act. ITPA requires a
senior police official, such as an Assistant Commissioner of
Police (ACP),and an independent witness to be present at the
time of the arrest. If neither the ACP nor the independent
witness is a female, a female police officer must also be
present. Chauhan said it is often very difficult for police to
bring the necessary parties together to make an arrest under
ITPA in the middle of the night, which is when most trafficking
raids are made. The rationale behind ITPA's procedural
requirements is to prevent corruption by lower level officers
who are often more susceptible to manipulation or pressure from
traffickers. Further, Chauhan explained, under Indian law only
senior ranking officers may enter a premise after 7:00 p.m.
without an arrest warrant. Despite these obstacles, Mumbai
police still filed 238 new cases before the ATC in 2009.



Specialized Trafficking Court Helps Bust Trafficking Networks

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7. (U) According to Chauhan, the centralization of
trafficking-related cases has allowed her to piece together
evidence from different cases to uncover wider trafficking
networks, which has significantly aided prosecution efforts.
For instance, she noticed that in several cases involving
call-girls from former Soviet Union countries, the same vehicle
was used to take the girls to the customer. In the case of
State v. Gopal Mundal, Chauhan linked together 55 traffickers in
seemingly different cases by tying them to the same ring, the
same car, and operations from the same three premises. She
identified a total of six women serving as call-girls and
ordered their return to their home countries. In addition, she
directed the police to charge the driver, the owner of the
vehicle, and the owner of the premises used for prostitution.
Chauhan's information directly helped police to identify and
disrupt a network of traffickers operating in New Delhi and
Mumbai.



Challenges Remain


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8. (U) According to Chauhan, the arrest and conviction record
could be even higher if the state and central government had a
unified database enabling law enforcement to look for patterns
and prior convictions of traffickers across jurisdictions. She
said that traffickers caught in Mumbai often move their
operations to Thane, outside Mumbai, or to New Delhi.

She also explained that in cases with foreign victims or those
from other Indian states, interpreters and translators must be
present, often causing delays in prosecuting the case. Despite
the best efforts of the police and courts, however, arrests
alone have little deterrent effect on traffickers, Chauhan
noted. In India, the accused has the right to be released on
bail pending trial and appeals, and every defendant convicted of
a crime has an automatic right of appeal to the Sessions Court
and above.



Comment

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9. (U) As Chauhan's experience makes clear, a dedicated
anti-trafficking court is able to make a significant impact in
bringing traffickers to justice. With 81 convictions in one
year, Mumbai's anti-trafficking court has demonstrated its
intent to fully prosecute trafficking charges. In an effort to
better understand the total number of convictions for
trafficking related offenses in Mumbai, post is working to
obtain data from the Bombay High Court on the number of appeals
filed from convictions under ITPA, other related penal statutes,
and the Bonded Labor Act in 2009. This data should enable post
to assess trafficking convictions involving higher crimes
outside Chauhan's jurisdiction, convictions by other Magistrate
Courts across the state, and forced-labor convictions.
FOLMSBEE