This article is written by Paridhi Dave, a student at the Institute of Law, Nirma University. This is an exhaustive article which deals with the offence of human trafficking, the legislation in India and the need to reform the existing laws.
Table of Contents
Introduction
Human trafficking is a form of organized crime, which is increasingly becoming a cross-border issue. It leads to several human rights violations, commercial sexual exploitation, organ harvesting, etc. Due to the constant changes in its forms and its complexity, there is a dire need to make stringent laws and make reforms in the extant laws.
This article discusses the meaning of human trafficking, its causes, its consequences, the governing legislation and the need for reforms in existing legislations.
Human trafficking
Human trafficking is a grave crime that violates the human rights of the victims. The menace is spread across the world, wherein each year thousands of people fall into the trap of traffickers in either their own countries or abroad. Every country in the world is responsible for the crime either as the country of origin, transit or the destination country for the victims. The crime can take place in any community irrespective of the age, gender, race, and the nationality of the victims.
Causes of human trafficking
To understand a problem, it is essential to go to its origins. The root causes of human trafficking are primarily the following:
- Poverty
- Unemployment
- Oppression
- Scarcity of resources
- Absence of social safety
- Violent acts against women and children
- Political Instability
- Corruption
- Exploitation
- Deceptive acts, false promises.
- Demand for cheap labour
- Lack of knowledge
- Broken or displaced families
- Cultural and social practices
Consequences of Human trafficking
The consequences of human trafficking are extremely severe. It can have an emotional, psychological and physical impact on the victims. Because the victims are dehumanized and objectified shamelessly, they undergo mental trauma. They can experience anxiety, depression, post-traumatic stress disorder, fear, etc.
Victims who have been sexually exploited can develop physical trauma and several other diseases. They can contract diseases such as HIV/AIDS, other infections and can also have a habit of substance abuse which in turn damages their health permanently. Further, these victims are often ostracized by society. As they lack basic education, it also becomes difficult for them to survive independently.
Human trafficking also has a significant impact on the economic security of a country. Since the offence has evolved in organized crime, it generates illegal income at all points – the origin country, in transit and the destination country. It can also function as a source for funding terrorism. As a result, the economy is affected because of the loss of human resources, the costs involved in the prevention of the crime, protection and rehabilitation of trafficking victims.
Human trafficking laws in India
Constitutional Provisions
The Consitution of India, 1950 provides for prohibition of human trafficking and forced labour explicitly. Article 23(1) of the Constitution states that trafficking in human beings; beggar and other forms of forced labour are strictly prohibited under the law. Any person whose acts contravene this provision is liable to be punished.
Further, Article 39 of the Constitution in clauses (e) and (f) states that it should be ensured that the workers are not abused and are not forced to enter into activities that are not suitable to them. Additionally, children should be given enough opportunities to develop in a healthy manner. They should be protected from exploitation and abandonment.
International Treaties
India has ratified several treaties and conventions regarding human trafficking and forced labour. These are highlighted below:
- United Nations Convention on Transnational Organized Crime (UNTOC), 2000.
- The SAARC Convention on Preventing and Combating Trafficking in Women and Children for Prostitution. A Regional Task Force was also constituted to implement this Convention.
- Palermo Protocols which includes protocols such as ‘Prevention, Suppression and Punishment of Trafficking in Persons, especially Women and Children’, 2000 and ‘Protocol against Smuggling of Migrants by Land, Sea and Air’, 2000.
- The Convention on the Elimination of All Forms of Discrimination against Women, 1979.
- The United Nations Convention on the Rights of the Child, 1989.
- The Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography, 2000.
- International Covenant on Civil and Political Rights, 1966.
- Universal Declaration of Human Rights, 1948.
- The Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, 1949.
- The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984.
Legislations
Indian Penal Code, 1860
IPC, 1860 is the legislation for governing criminal offences in India. There are several provisions for prescribing the necessary punishments for human trafficking.
Section 370 of Indian Penal Code, 1860 states that any person who for fulfilling the purpose of exploitation either recruits, transports, harbours, transfers or receives a person or persons by the following methods:
- Use of threats;
- Use of force or any form of coercion;
- By abducting;
- By indulging into fraudulent activities or deceiving;
- By abusing power;
- By way of inducement, which includes giving or receiving payments or other benefits, to attain the consent of any person who has control over the person who is recruited, transported, harboured, transferred or received.
Such a person who indulges into the aforementioned acts is liable for the commission of the offence of human trafficking.
The explanation to the provision states that the term ‘exploitation’ is an inclusive term. It includes all acts of physical exploitation or any form of sexual exploitation, slavery or practices which resemble slavery, servitude or the forced harvesting of organs. It further clarifies that the victim’s consent stands immaterial for determining the offence of trafficking. The punishment prescribed is imprisonment for a term between 7-10 years and fine.
The other offences which are mentioned in the section are highlighted below:
|
Offence |
Punishment |
|
Trafficking of more than one person |
Rigorous imprisonment for a term ranging between 10 years to life imprisonment + fine |
|
Trafficking of a minor |
Rigorous imprisonment for a term ranging between 14 years to life imprisonment + fine |
|
Trafficking of a minor on more than one occasion |
Imprisonment for life, i.e. imprisonment for the remaining natural life + fine |
|
A public servant or a police officer is involved in trafficking of a minor |
Imprisonment for life, i.e. imprisonment for the remaining natural life + fine |
Section 370A of the Indian Penal Code, 1860 in its first part states that if any person has knowledge or a reason to believe that a minor has been trafficked and if such person engages such minor in sexual exploitation in any manner, then he is liable to be punished with imprisonment for a term between five to seven years. He shall also be liable for a fine. The second part of the provision states that if any person has knowledge or a reason to believe that an individual has been trafficked and if such person engages such individual in sexual exploitation in any manner, then he is liable to be punished with imprisonment for a term between three to five years. He shall also be liable for a fine. The above-mentioned offences are cognizable, non-bailable and non-compoundable.
Section 371 of the Indian Penal Code, 1860 mentions the offence of habitual dealing in slaves. It states that any person who is habitually involved in the act of exporting, removing, importing, buying, selling, trafficking or dealing in slaves is liable to be punished with life imprisonment or imprisonment for a duration which does not exceed ten years. Such a person shall also be liable for a fine.
Similarly, Section 372 of the Indian Penal Code, 1860 and Section 373 of the Indian Penal Code, 1860 deals with the selling and buying of minors for the purpose of prostitution, respectively. Persons involved in such acts are liable to be punished with imprisonment for a duration which does not exceed ten years. Such persons shall also be liable for a fine.
Trafficking of Persons (Prevention, Protection & Rehabilitation) Bill, 2018
The primary purpose of this Bill is to introduce a law for the investigation of all types of trafficking. It also aims to create a law for rescuing, protecting and arranging for the rehabilitation of victims of trafficking. It also classifies certain forms of trafficking as aggravated forms of trafficking which attracts a higher punishment. These aggravated forms of trafficking include trafficking for the purposes of forced labour, begging, inducing early sexual maturity, etc.
The criticism of the Bill is that it punishes the owner or the lessor of a premise if he knowingly permits trafficking to be continued in the premise. The Bill ‘presumes’ that such owner or lessor has the knowledge of the offence unless they can prove otherwise. This provision could be violative of Article 21 of the Indian Constitution. The Bill also provides punishment for persons who indulge in distribution or publication of material which leads to trafficking. It is not sure how it will be determined that an act is likely to lead to trafficking.
Immoral Traffic (Prevention) Act, 1956
The Immoral Traffic (Prevention) Act, 1956 is in pursuance to the Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others. The Act primarily focuses on prostitution and sex-workers. It defines prostitution as sexual exploitation or abuse of persons for commercial purposes, under Section 2(f). Under Section 3 of the Act, the punishment for keeping a brothel or allowing the use of a premise as a brothel is given. Section 4 of the Act prescribes punishment for those people who live on the earnings of prostitution.
Goa Children’s Act, 2003
This State legislation provides a comprehensive definition of trafficking, although it is restricted to children and to Goa. Under Section 2(z) of the Act, the term ‘child trafficking’ is defined as procuring, recruiting, transporting, transferring, harbouring or receiving children legally or illegally, either within or across borders, by employing the means of threat or use of force/coercion, of abducting, of fraudulent acts, of deceiving, of the abuse of power or of a position of vulnerability or of giving or receiving payments or benefits to attain the consent of the person who has control over another person, for either monetary gain or otherwise.
Important judgments concerning Human Trafficking
People’s Union for Democratic Rights vs. Union of India (1982) 3 SCC 235
In this case, the Supreme Court defined the meaning of the term ‘forced labour’ with reference to Article 23 of the Indian Constitution.
Bandhua Mukti Morcha vs. Union of India & Ors. AIR 1984 SC 802
In this case, the Apex Court stated that whenever it is shown that a labourer is being compelled to provide forced labour, then the Court would presume that such labourer is required to do so in consideration for economic benefits. Such labourers will be entitled to benefits provided by the law.
Neerja Chaudhary vs. State of Madhya Pradesh AIR 1984 SC 1099
In this case, the Apex Court issued directions for the rehabilitation of bonded labourers.
Vishal Jeet vs. Union of India (1990) 3 SCC 318
The Supreme Court in this case ordered for an objective study and an investigation into the causes and consequences of this menace. It also ordered for all the State Governments and the Union Government to take measures to combat trafficking.
M.C. Mehta vs. State of Tamil Nadu 1996 6 (SCC) 756
The Supreme Court, in this case, issued various measures which have to be taken to provide support for the child labourer and its family. It stated that the premises of the offender should be sealed and they should be fined INR 20,000 which will be employed for the rehabilitation of the victim.
Madhu Kishwar vs. State of Bihar (1996) 5 SCC 125
The Apex Court, in this case, considered the various provisions of the Convention on the Elimination of All Forms of Discrimination Against Women, 1979 (CEDAW) and held that these provisions are an integral part of the Fundamental Rights and the Directive Principles of State Policy.
Need for Reform in legislations
The erstwhile Section 370 of the Indian Penal Code, 1860 was replaced by the Criminal Law (Amendment) Act, 2013. The Amendment inserted certain new terminologies for increasing the scope of criminalisation. The Amendment was a result of the report presented by the Justice Verma Committee, which primarily focused on sexual exploitation of trafficking victims.
The insertion of Section 370A of the Indian Penal Code, 1860 is a restricted provision as it does not take into account the exploitation of trafficked persons in other sectors of forced labour, for example, agriculture, domestic work, construction industry or beggary rackets. These are few areas where rampant exploitation of people who are trafficked still takes place.
Further, the extant laws do not provide sufficient safety mechanisms to prevent human trafficking. The existing legislations primarily aim at commercial sexual exploitation and do not cover trafficking made for other purposes. Additionally, the legal framework is insufficient in terms of providing an effective system for the safety, recovery and compensation of victims of trafficking.
Regarding the Immoral Traffic (Prevention) Act, 1956 (ITPA), it has still remained unchanged and has no reference to the amendments in the Indian Penal Code. Resultantly, there is a dissonance between the two prominent legislations which has led to a failure in curbing trafficking. The ITPA,1986 is the governing legislation to deal with trafficking in India, yet it has an extremely restricted scope. It only covers commercial sexual exploitation or prostitution in its ambit.
Further, there are several definitional inconsistencies. The Act lacks a definition of trafficking, commercial sexual exploitation, etc. It emphasizes on brothels as a site of commercial sexual exploitation and penalizes the facilitators accordingly. There is an ambiguity regarding what constitutes the actual offence. Is prostitution an offence or is trafficking for prostitution the real offence? Although prostitution is not outlawed in India, all women engaged in this profession are regularly treated as offenders under this Act. It has recently sparked a debate wherein sex workers and activists have contended that the provisions of this Act are being used disproportionately against them.
Further, because of the Act’s emphasis on brothels, sexual exploitation that takes place on private premises is largely uncovered by the legislation. Also, treating the victims as the offenders implies a contradiction because the victim cannot simultaneously be an offender too. The detention of victims in ‘corrective’ homes establishes this contradiction.
The Act also does not cover the practice of recruiting girls for the purposes of prostitution, under the garb of religion – example: dev-dasis. The law also does not clearly define the rights of the victims. Moreover, due to the lack of a witness protection program or the option of in-camera proceedings, victims refrain from testifying; especially in the cases of child victims. The Act severely neglects the cross-border dimensions of human trafficking, which also includes inter-state trafficking. An Amendment Bill was introduced in 2006, but no action has taken place since then.
Conclusion
The issue of human trafficking is very sensitive in nature. The need of the hour is a comprehensive strategy to deal with it. The government should aim at rehabilitation and integration of the victims into society. The laws concerning human trafficking should be more stringent w.r.t to the punishment imposed.
Cooperation is required at both the Central and the State level to tackle this issue. The country needs to enforce municipal laws which are in consonance with international laws. The society is moving forward at a fast pace and the law needs to be dynamic to address these growing concerns.
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