In Pakistan the state of women and inhuman treatment meted out to women mostly by men whom such women are more likely to turn to for their protection has prompted the legislature to enact various safety valves in the form of penal provisions to curb and arrest trafficking in women. While the Pakistan Penal Code in its original form ensured protection against such atrocities against any human being through Sections 362, 365 and 370 P.P.C., the ever increasing rate of women and children trafficking compelled the state to enact further provisions which shall be discussed ahead.
An alarming increase in incidents of women and children trafficking resulted in the promulgation of Prevention and Control of Human Trafficking Ordinance, 2002 (now replaced by means of Prevention of Trafficking in Persons Act, 2018). The failure of the governments as also of the state to control and rein in the deep rooted and in most cases tacitly acceptable practice of utilization of women to gain finances or settle disputes ran foul of Articles 9, 14, 25 and 37 of the Constitution and hence new offences were added in the Pakistan Penal Code, 1860 as well with the clear intention to ensure social protection and inviolability of dignity of women in Pakistan through the introduction of the Protection of Women (Criminal Laws Amendment), Act, 2006. By means of this holistic amendment Sections 365-B, 371-A and 371-B etc. were added to the Pakistan Penal Code, 1860. This was done also to compliment and reinforce the commitments undertaken by the State of Pakistan while signing the Convention for Eradication for Discrimination against Women (CEDAW).
Later, in 2018, Prevention and Control of Human Trafficking Ordinance, 2002 was repealed and re-enacted as Prevention of Trafficking in Persons Act, 2018. The legislative wisdom and intent in enacting the said Act being clearly evident through its preamble.
Therefore while laws have been gradually put in place, the deterrence or prevention aimed at through such provisions has not been attained. The Constitution of Islamic Republic of Pakistan through its Article 11 vows to eradicate all forms of slavery and trafficking, yet in practice, women continue to suffer and are subject to trade by their close family members and this goes on despite the evolution and introduction of laws aimed at ensuring protection of women against such abominable practices. South Punjab being no exception.
The Human Rights Commission of Pakistan in February, 2021 identified women and children trafficking as a form of slavery. Such woman trafficking is a manifestation of historically unequal relations between men and women in the Sub-Continent. The social construction and perpetuation of gender bias establishes male authority and power over women. Some forms of violence against women, especially domestic and customary violence, are so deep rooted in cultural norms that these are hardly recognized as violence and hence largely, albeit wrongly, condoned by the society. This environment heightens and accentuates the role of the Executive Law Enforcement Agencies and saddles them with a proactive and anticipatory rather than a reactionary role.
The state of women in Pakistan today, especially in far flung areas, marked by harrowing cases such as the present one displaying a society worse than the one that formed basis for feminist movements in 18th century reveals that we are a nation where weak are exploited and the exploiters are condemned on paper only. Our Constitution vows to establish an egalitarian society, however, 50 years on, successive governments and the state have failed to ensure human dignity and a simple right of free, autonomous dignified life for its women let alone facilitate them in becoming a thriving segment of society.
Such subjugation coupled with inability of the state to provide protection pave the way for the treatment of women as mere commodities, a practice which Islam prohibited and sanctioned over 1400 years ago, much before the relatively recent feminist movements were even perceived and definitely before the very famous and widely quoted statement of Hillary Clinton at the UN Conference of Women in September, 1995, „Women rights are human rights‟. The sad and ironic reality of the necessity of stating the obvious manifests itself in its worst form in case where women are believed and considered to be an object of gratification in one form or another.
Our claim of being a civilized society with dictates of prowomen laws and even decrees of Sharia should have eliminated all such evils and there should have remained no single custom or usage degrading/lowering the women or depriving them from their guaranteed rights but details noted above as also the facts of the present case paint a sorry and a different picture and holding Jirgas and passing illegal decrees trading women, trafficking in women, awarding women as Badl-e-Sulah etc. are still routine practices particularly in far flung areas. Therefore judicial propriety demands an examination of this issue by the stakeholders with a view to ensure strict application of prevailing laws so as to curb these illegal, immoral not to mention inhuman activities. Viewed in the context of Articles 9, 14, 25 and 37 of the Constitution dignified existence, the protection from degradation and the accessibility to a decent social and cultural environment all seem far away and unattainable.
Circumstances of the present case i.e. pendency of a crime report and the frustrating inability of the law enforcement agencies to recover the detenue and her child clamour for an incessant supervision of the issue so that the Executive Organ of the State performs its statutory functions properly. What this Court has in mind is a version of a continuous Mandamus.
Crl. Misc. No.5159 of 2022
Kalsoom Mai Petitioner by: Versus DPO, etc.
29-07-2022
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