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Legal Strategies to Combat Trafficking in India
Last November, The Freedom Fund and The Thompson Reuters Foundation partnered together to publish a report titled “Putting Justice First: Legal Strategies to Combat Human Trafficking in India.” The report offers strategies on working with media and increasing collaboration among NGOs. It also offers recommendations on how to enforce court rulings and training needed for anti-trafficking efforts. Check out excerpts below!
Credit: CARITAS
NGO Initiatives to Support Victims through the Criminal Justice System
- Providing legal assistance: Hiring lawyers to pursue legal cases on behalf of victims.
- Filing a complaint: Ensuring that if the victim wants to pursue legal action, an official complaint, known as a “First Information Report” (“FIR”), is filed and registered with the police, referencing the relevant legislative provisions.
- Pursuing claims: Liaising with senior police and government officials or courts if an FIR is not registered and working with lawyers to get all applicable charges included at trial stage.
- Opposing bail: Opposing the granting of bail to the accused to ensure the new presumption against bail in trafficking cases is implemented.
- Preparing the victim: Supporting the victim to provide statements to the police and testify in court.
- Witness protection: Protecting victims and other witnesses who are often “revictimised” by further threats and intimidation by traffickers.
- Assisting public prosecutors: Gathering evidence, preparing submissions and briefing public prosecutors on cases.
- Obtaining compensation: Applying for compensation for victims where eligible under the relevant legislation.
Few NGOs can Support Cases Through to Trial Stage
While there are hundreds of NGOs across India that work on combating trafficking, only a small portion pursue legal cases on behalf of victims. Those that do provide legal support have limited capacity and [resources] are only able to support a small percentage of cases through to the trial stage. These constraints are compounded, or are a result of:
- Donor funding restrictions – funding is generally directed to non-legal victim assistance programmes instead of legal work;
- Longevity of cases – each trial case is resource intensive and time consuming, taking anywhere from 2-6 years on average; and
- Inadequate criminal justice system – the challenges of operating within a criminal justice system that does not function properly in many places due to extreme overload.
Traditional ‘Trafficking’ Crimes are Easier to Register with Police
A new Indian law has expanded the definition of trafficking and it holds significant potential to increase prosecutions and act as a strong deterrent. Despite this immense potential, in practice NGOs have varying success in ensuring that police register claims under the amended provisions. NGOs are having much more success ensuring that in situations traditionally viewed as “trafficking” and “exploitation” in India, such as sex trafficking cases or those involving minors.
Primary Legal Strategies Used by NGOs
Some NGOs have spearheaded legal change through strategic or public interest litigation (PIL) cases. A few legally-savvy NGOs have used PIL to obtain landmark judgements in the higher courts that have lead to significant legislative changes. Apart from PIL, writ petitions and habeas corpus cases (where victims have been unlawfully detained or are missing) in the higher courts have also proved effective in obtaining favourable legal outcomes for a significant number of victims of trafficking and forced labour.
Strategies to Address Gaps in Enforcement of Court Rulings
One NGO said it uses contempt of court petitions to try and get orders enforced, [but] this is costly and time consuming. Sometimes, however, these actions do result in serious consequences for government officials, who are “loath to test the power of courts.” Another NGO found building relationships with senior government officials to be effective, as they can help with passing an Executive Order to comply with court rulings or issue “notifications” for law enforcement authorities to implement important SOPs.
Strategies to Address Challenges & Reduce Trauma to Victims Pursuing Prosecution
Many [NGOs] have built strong community-level mechanisms and networks that provide support, protection and assistance to the victims throughout the trial. Some NGOs have created community “witness protection schemes.” These structures are also used to provide trauma counselling to victims, although several NGOs emphasised the need to provide counselling in a more systematic way, particularly in the pre-trial stage.
NGOs and lawyers also fight false and counter cases on behalf of victims. Finally, in cases where the victim and trafficker live in close proximity, some NGOs support the victim by brokering out-of-court settlements and may file FIRs but not litigate. Such strategies have proved successful in some cases. For example, where employers are keeping workers in forced labour through the use of illegal debts and the victim decides not to pursue legal action, NGOs have had the employers cancel such debts.
Challenges for NGOs in Obtaining Experienced Lawyers
- NGOs find it difficult to find committed and experienced lawyers who can undertake cases at an affordable cost or pro bono.
- NGOs lack access to high-quality legal advice – even when an NGO has its own lawyers, sometimes expert advice is required on a particular area.
- District level lawyers need mentoring by senior criminal lawyers to improve their legal skills and knowledge on how to run cases more successfully in lower courts, work with the public prosecutor to ensure best outcomes and address recurring legal obstacles.
- NGOs require representation and support in higher courts to oppose bail, run appeals in criminal cases and prepare and file writ petitions and public interest litigations.
- District level NGOs require junior lawyers to provide support to senior lawyers at the community level and help run cases more efficiently.
- NGO staff are often not able to access legal advice after hours when many rescues take place. Some NGOs that undertake rescues and lodge FIRs for victims, would like to provide further legal support (e.g. pursuing prosecutions). However, they lack access to legal expertise and other resources to support such work.
- NGO staff and lawyers need legal training and support to understand recent legal developments and procedures, as well as clear guidance on how to support each stage of a case, from rescue through to trial and appeal.
Training NGO Staff to Become Paralegals
Staff members are critical in improving the efficiency of legal work undertaken and connecting to local communities. Many NGOs stated that with improved legal training these key community-level NGO staff could significantly improve legal outcomes. As these staff members often handle entire districts, they have limited capacity and would greatly benefit from trained paralegal support cadre at the community level.
Additional Training Needed for Staff
The research identified a pressing need for trained, female staff and counselors who could provide support to victims. The gender component of these cases tends to be overlooked when female victims do not feel comfortable confiding in male staff or lawyers. The research also identified a need for trained counsellors, male and female, to provide trauma and psycho-social counselling to victims before, during and after trials.
Increasing Collaboration on Anti-Trafficking Work
There is a significant lack of collaboration between NGOs in India. Collaboration between NGOs that have acquired legal experience, skill and know-how in pursuing cases would help increase prosecution rates and improve legal outcomes for victims. The need for collaboration has been strongly underscored in the literature, which indicates a need for NGO ‘grids’ and better ‘systems thinking’ on how to work together. The research indicated that instances of collaboration are very rare. This was apparent even in inter-state cases, where a trafficking victim is identified or rescued in a state different from their “home” state (or state of previous residence).
Common Challenges for NGOs Processing Inter-State Cases
- an absence of clear, well-defined and legally-binding repatriation protocols for trafficking victims between districts and states in India (and even between countries);
- difficulties dealing with different legal, police and administrative jurisdictions;
- understanding where and how to file a first police report;
- gathering evidence in multiple destinations;
- language barriers;
- travel and rescue costs;
- safety and security concerns; and special challenges posed in the case of child victims.
Strategies to Improve Referrals among NGOs
NGOs that intercept traffickers and undertake rescue of victims often proactively refer the cases to other NGOs that could provide legal support. To counter some of these issues, different NGO networks have arisen to improve connectivity between states and to allow NGOs to contact like-minded partners who may assist them. Government help-lines have also been established. However, feedback strongly suggests that the existing networks are not functioning well and need to be strengthened to be truly effective, or a new and stronger referral mechanism should be established.
Why More Collaboration is Needed for Public Interest Litigation
The strength of the case often depends on evidence gathered from several cases and detecting larger patterns in them — NGOs interviewed each support anywhere from 100-300 cases at any given point. However, if they collaborated and shared information, then evidence from a greater number of cases could be used to strengthen the PIL case. NGOs can become party to each other’s PIL cases. NGOs are likely working towards a common aim. If a PIL case is fought collaboratively in a state where many NGOs want a certain systemic change, the outcome applies to the whole state; similarly, if brought in the Supreme Court, it will apply to the entire country thus advancing the battle against trafficking at the national level (and avoid duplicating efforts at state or local level).
Efforts to Pursue Asset Seizures or Seal Businesses Involved in Trafficking
Many NGOs do not pursue asset seizures or the sealing of businesses. This may, in part, be explained by a lack of awareness of existing legislation, jurisprudence. However, another explanation may be that NGOs wish to avoid an adversarial approach with traffickers and their businesses. Such action may have negative and potentially dangerous consequences for NGOs and victims themselves, who already face significant threats and intimidation, particularly in rural areas. To view laws in India which impact businesses involved in trafficking or slaveholding, see page 20.
Indicators to Monitor Trafficking Cases
One Delhi-based NGO has developed a legal database with 202 monitoring indicators, which allows them to:
- Identify gaps at different stages in an ongoing trial case. Some of the things they look for are the time elapsed between complaint and rescue, the time elapsed since completing a charge sheet or procedural steps that have not been taken at a particular stage (e.g. filing an affidavit) that need to be followed up.
- Document the working and living conditions of a victim, calculate wages owed and any payment of back wages.
- Track enforcement of legal orders.
- Provide real-time information to the courts during a trial. For example, on the basis of data extracted from the database, the National Commission for the Protection of Child Rights was able to provide an affidavit that provided data on trafficking activity in Delhi to the Delhi High Court. The data contained an analysis of the total number of identified trafficking victims versus the number of rescue operations and rescued victims.
Building NGO Capacity to Use Data & Build Case Management Systems
Despite the relative sophistication of this case management system, the NGO is fairly limited in the data analysis that it can undertake due to resource and capacity constraints. As such, there is huge potential to strengthen capacity to analyse and utilise this data more in the courts. Many NGOs expressed a need to strengthen or build new case management systems that would help them in better trial monitoring and lead to better legal outcomes. Data and trend analysis from past cases to improve legal interventions was generally weak, as was institutional documentation and sharing of legal strategy and knowhow. Tapping in to this information and sharing it with other stakeholders in the antitrafficking arena would enable many organisations to improve their legal interventions.
The Role of Media in Improving Court Outcomes
Positive Role of Media on the National Level: Media articles have been used to initiate writ petitions at court, to apply public pressure when authorities are unresponsive, and to increase awareness of the incidence and effects of trafficking and slavery in India. Timely media articles have helped to obtain strong orders from judges in many cases.
The use of media is particularly useful if the victim is up against a perpetrator who is either influential themselves or has strong political or criminal linkages. The national media in India has been used effectively in such cases to apply counter-pressure during the trial. Finally, the reporting of a conviction sends a strong deterrent message to potential perpetrators.
A Delhi-based NGO that has worked with the media intensively reported that continued reporting on the progress of a trial can be an important factor in obtaining successful prosecutions. They also found that the national media continues to remain interested in reporting court orders in trafficking cases and that cultivating good relationships with court journalists is useful for this purpose.
Media Can Play a Negative Role at the Local Level: NGOs working at the district level expressed mixed feelings about the use of the media in trafficking cases. They reported that local media is more important at the community level and that national reportage on trafficking and cases is not widely read or easily accessible. Overall, there was a sense amongst NGOs that the media at the local level were often “against” the victim. They expressed concern about unethical and irresponsible journalism that has traumatised victims or been damaging to cases. Further, there are not as many court journalists as at the national level. Despite this, they recognised the need to understand how to use media more effectively in their work and as well as the need for journalists to undergo training on how to better cover trafficking and better understand relevant legislation.
Recommendations
Several recommendations were made to improve anti-trafficking efforts and can be found on page 26. They are listed under 7 overarching categories:
- Access to legal support (direct funding to NGOs).
- Centralised legal support initiatives
- Knowledge and training
- Strategic litigation and procedural reform
- Data and technology
- Media
- Strengthening collaboration and building partnerships
Reinventing the Rules 