Written by Saylee Chaugule, pursuing Certificate Course in Advanced Criminal Litigation & Trial Advocacy offered by Lawsikho as part of her coursework.  Saylee is currently working as an independent practitioner in the field of registration of Partnership firms.

Human Trafficking means action or practice of illegally transporting people from one country or area to another, for the purposes of forced labour or sexual exploitation.

Human trafficking is a serious crime and grave violation of human rights. Sexual exploitation of the children for any country is worst than any other offence against the children. Article 51A (e) of the Constitution imposes the duty on every citizen of India in mandatory form which says that “It shall be the duty of every citizen of India, to renounce practices derogatory to the dignity of women”. But, in practice the position is different from the spirit of the constitution in India.

Human trafficking can be for-

  1.   Sexual exploitation
  2.   Bonded Labour
  3.   Domestic servitude
  4.   Begging
  5.   Drug peddling/smuggling  
  6.   Forced marriage
  7.   Forced criminality
  8.   Child soldiers
  9.   Organ harvesting

Factors Leading to Trafficking

  1.   Poverty
  2.   Lack of employment opportunities
  3.   Religious/ Traditional Prostitution
  4.   Child Marriage
  5.   False promises for job/marriage
  6.   Migration
  7.   Sex tourism
  8.   Internet Pornography

Not only women and children but also men are subject to human trafficking. In India, a large number of people are trafficked not only for sex trade but also for other various kinds of servitude.

Different types of sexual exploitation of children

This term sexual exploitation of children refers to criminal practices that demean, degrade and threaten the physical and psychological integrity of children, in particular, sexual abuse by an adult and remuneration in cash or kind to a child or third person(s). Besides the sexual crimes against women there are following forms of commercial sexual exploitation of children namely: (A) Child prostitution, (b) Child pornography, in general,/on the internet, (c) Trafficking for sexual exploitation, (d) Incestuous sexual exploitation (e) Child sex tourism and f) Child marriages.

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Legal Framework

India has wide range of laws enacted by the Parliament and some State legislature, apart from provisions of the Constitution which is the basic law of the country.

  Constitution of India

  •  Article 23- Protects against exploitation, prohibits traffic in humans and beggar and makes this practice punishable under law.
  • Article 24- Protects children below age 14 from working in factories, mines or other hazardous employment.

  Indian Penal Code

There are around 25 provisions for trafficking but some of the significant among them are as below-

  •  Section 366A- Inducing any minor girl under the age of eighteen years to go to any such place with intent to forced or seduced illicit intercourse with another person shall be a punishable offence.
  •  Section 366B- Importing any girl under twenty-one years with the intent that she will be, forced or seduced to illicit intercourse with another person is a punishable offence.
  • Section 374- Punishes any person who for unlawfully compels any person to labour against his will.

 Immoral Traffic (Prevention) Act 1956

The Immoral Traffic (Prevention) Act, 1956 is the primary legislation for the prevention of sexual exploitation for women and girls. The word “Trafficking” is defined only by the Goa Children’s Act, 2003, which is a state law. Thus, while the ITPA is the main legislation related to the commercial sexual exploitation of children, it does not define trafficking.

Offences specified are:

  •         Keeping a brother or allowing premises to be used as a brothel
  •         Living on the earnings of prostitution
  •         Attempting, procuring or taking person for the sake of prostitution
  •         Detaining any person in premises for prostitution
  •         Prostitution in the vicinity of public places
  •         Seduction of a person in custody

 Child Labour (Prohibition and Regulation) Act, 1986

The Act prohibits employment of children below specific age and in certain specified occupations. It also imposes punishment for the employment of minor children.

 Information Technology Act, 2000

The act penalises transmission of any such material in electronic form which is inappropriate and lascivious. This act also addresses the problem of pornography.

Section 67A- Punishes publication or transmission of material containing sexually explicit act in electronic form.

Section 68B- Punishes publication or transmission of material depicting children in sexual explicit act in electronic form.

 Juvenile Justice (Care and Protection of Children) Act, 2000

The law is relevant for children who are vulnerable and are therefore likely to

be the victim of trafficking. It protects juveniles in need of care and protection.

 Karnataka Devadasi (Prohibition of Dedication) Act, 1982

Act of dedication of any girl with or without consent of the dedicated persons engaging her in prostitution is unlawful and punishable.

 Andhra Pradesh Devadasi (Prohibiting Dedication) Act, 1989

This law prohibits any ceremony dedicated as Devadasi in any manner and imposes a penalty of imprisonment for three years and fine.

 Goa Children’s Act, 2003

This act is defined precisely in Trafficking. It includes every type of sexual exploitation in the definition of sexual assault. Manager and owner of the establishment are responsible for the safety of minors or children in hotel premises. There are strict laws on about the safety of children and publishing pornographic materials.

International Instruments

A list of Conventions and contents to eliminate the children’s sexual abuse-

  1.  International Conventions for the Suppression of the Traffic is Persons and of the Exploitation of the Prostitution of others, 1949
  2. (Signed by India on May 9, 1950).
  3. The Convention on Consent to Marriage, Minimum Age for Marriage and Registration for Marriages- Convention enforced with effect from 9th December 1964
  4.  The Convention on the Elimination of All forms of Discrimination against Women (CEDAW)- Convention enforced with effect from 3rd September 1981.
  5. The United Nations Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules) 1985, adopted by the United Nations General Assembly in November 1985.
  6.  The Convention on the Rights of the Child (CRC), 1989 adopted on 2nd Sep 1990 (India ratified in November 1992)
  7.  United Nations Guidelines for the Prevention of Juvenile Delinquency (The Riyadh Guidelines), 1990, adopted by the General Assembly in December 1990, complement the previously adopted Beijing Rules.
  8.  The Declaration on the Elimination of Violence Against Women, 1993
  9.  The International Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour (ILO Convention 182), 1999- Convention enforced with effect from 19th November 2000.
  10.  The Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (Trafficking Protocol), 2001.
  11. The Optional Protocol on the sale of children, Child prostitution and child pornography, 2000- UN adopted on 18th January 2002.

Regional Instruments- (SAARC Conventions)

At regional (South Asia level) we are signatory of two/instruments, dealing with the sexual exploitation. Those instruments are : (1) SAARC Convention on Preventing and Combating Trafficking in Women and Children for Prostitution, 2002; and (ii) SAARC Convention on Regional Arrangements for the promotion of Child welfare in South Asia, 2002

Judicial view on child trafficking

Since India has signed the Optional Protocol to Prevent, Suppress and Punish Trafficking in Persons especially Women and Children, the definition in the protocol should apply until a definition has been introduced into local legislation. The Hon’ble Supreme Court in two of its leading judgements held that International Treaties/Conventions to which the state is a  party to apply around the country in the absence of domestic legislation to that effect or to file contrary. Under Article 14 of the Constitution, the judgement of the SC is applicable, it can be argued that these international definitions should be applied locally, but the practice is otherwise. Unfortunately, this definition has not yet been accepted by Indian courts.

USA, Federal has awarded over $1,00,000 to victims of Human Trafficking. As on April 30, 2004, the pending 152 trafficking investigation was more than twice the number open in January 2001.

Prevention of Trafficking

The human trafficking can be prevented by several types of intervention. It needs to focus on areas of sensitization and awareness in public and with those vulnerable areas which are responsible for creating such an environment for human trafficking.

Roles of

  State

A compulsory high-quality education, income generation and employment opportunities should be created.

  • Promote high-quality programmes for teachers in government schools.
  • A preventive measure by different nations should be shared among each other to help both the countries in preventing trafficking.

  NGOs

The community should keep a vigilant watch on the movement of child victims of the area of traffickers.

  • They should educate and ensure to make parents are aware about the safe migration practice.

Media

Media has a very important role due to major viewership.

  • Transmitting the appropriate message to the victim to ensure that they have a backup and are not alone.
  • A programme to make citizens aware of places and institutions to seek help in case if they are victimised.
  • Educate and spread awareness that human trafficking is illegal and inappropriate and that it has negative consequences.

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