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WHAT LAW SAYS ABOUT HUMAN TRAFFICKING IN INDIA?

WHAT IS HUMAN TRAFFICKING?

According to the definition of the United Nations: “trafficking is any activity leading to recruitment, transportation, harbouring or receipt of persons, using threat or use of force or a position of vulnerability”. It is the trade of humans for forced labour, sexual slavery, or commercial sexual exploitation for the trafficker or others. Human trafficking in India, although considered to be illegal under Indian law, remains a significant issue. People are still illegally trafficked through India for commercial sexual exploitation and forced/bonded labour.

Human Trafficking may enclose providing a spouse in the context of forced marriage or for the extraction of organs or tissues, which includes surrogacy and ovary removal. Victims can be of any age, race, gender or nationality. Traffickers might use violence, manipulation, or false promises of well-paying jobs or romantic relationships to entice victims into trafficking situations.

Due to its complex cross-border nature, human trafficking requires a coordinated, multi-disciplinary national and international response. Human trafficking is the third-largest organized crime after drugs and the arms trade across the world.

WHY HUMAN TRAFFICKING IS ILLEGAL?

Human trafficking has developed to become one of the largest international crime industries all across the globe. It is a heinous offence and a grave violation of fundamental rights ( Right against exploitation).

Human rights most relevant to trafficking are as follows: –

  • Prohibition of discrimination of all kinds
  • Right to life
  • Right to liberty and security
  • Right not to be submitted to slavery, servitude, forced labour or bonded labour
  • Right not to be subjected to torture and/or cruel, inhuman, degrading treatment or punishment
  • Right to be free from gendered violence
  • Right to freedom of association
  • Right to freedom of movement
  • Right to the highest attainable standard of physical and mental health
  • Right to just and favourable conditions of work
  • Right to an adequate standard of living
  • Right to social security
  • The right of children to special protection.

LEGAL FRAMEWORK AGAINST HUMAN TRAFFICKING IN INDIA

In the present scenario, the legal regime of trafficking in humans is explicitly and implicitly governed by the following statutes towards inflicting harm.

Immoral Traffic (Prevention) Act, 1956

  • Section 3 – It provides for punishment to a person for keeping a brothel or allowing premises to be used as a brothel or who is in charge of any such premises either by himself or through a tenant, occupier, etc.

In Kamalabai Jethamal vs The State of Maharashtra, the apex court in an appeal challenging the eviction of a prostitute from the house and disputing her conviction as bad in law because the search was not conducted following provisions of the Code of Criminal Procedure, 1973 held that High Court had powers to order her eviction under section 18 of SITA after she was convicted under section 3 of the Act.6

  • Section 4 – It provides for punishment to any person over 18 years of age, living on the earnings of prostitution of another person.
  • Section 5 – It provides for punishment to any person who is involved in procuring, inducing or taking another person for the sake of prostitution.
  • Section 6 – It provides for punishment to a person who detains another person with or without his consent in any brothel or any premises for prostitution with the intent that such detained person may have sexual intercourse with any person who is not the spouse of such detained person.
  • Section 7 – Any person who carries on prostitution and the person with whom such prostitution is carried on in any premises which are within close proximity to a public place, including a hospital, nursing home, place of religious worship, hostel, educational institution, or in an area notified under the provisions of the Act, can be punished with imprisonment for a term of three months.
  • Section 8 – Seducing or soliciting for the purpose of prostitution is also an offence and punishable with imprisonment up to six months or a fine up to Rs 500, in the case of a first conviction. In case of a subsequent conviction, the prison sentence can be extended up to one year including a fine of Rs 500. However, if the person soliciting is a man, the statute provides that he shall be punishable with not less than seven days imprisonment which may be extended to three months.
  • Section 18 – A Magistrate can order the immediate closure of a place that is being used as a brothel or as a place for prostitution and is within 200 meters of any “public place” as referred to in Section 7 above, and direct the eviction from the premises from where any person is ostensibly carrying out prostitution on receipt of information from the police or otherwise. The occupier is given only seven days’ notice for eviction from such premises.
  • Section 20 – It empowers a Magistrate, on receiving information that any person residing in or frequenting any place within the local limits of his jurisdiction is a prostitute, to issue notice to such person requiring him to appear before the Magistrate and show cause why he should not be removed from the place and be prohibited from re-entering it, and an order to be passed by the Magistrate effecting the same on merits, non-compliance of which will attract punishment in accordance with this section.
  • Section 21 – The State Government may in its discretion establish as many protective homes and corrective institutions under this Act as it thinks fit and such homes and institutions when established shall be maintained in such manner as may be prescribed. Whoever establishes or maintains a protective home or corrective institution except in accordance with the provisions given shall be punishable under this section.
  • Section 22-A – If the State Government is satisfied that it is necessary for the purpose of providing for speedy trial of offences under this Act in any district or metropolitan area, it may, by notification in the Official Gazette and after consultation with the High Court, establish one or more Courts of Judicial Magistrates of the First Class, or, as the case may be, Metropolitan Magistrate, in such district or metropolitan area.
  • Section 22-B – Notwithstanding anything contained in the Code of Criminal Procedure, 1973, the State Government may, if it considers it necessary so to do, direct that offences under this Act shall be tried in a summary way by a Magistrate [including the presiding officer of a court established under sub-section (1) of Section 22-A] and the provisions of Sections 262 to 265 (both inclusive) of the said Code, shall, as far as may be, apply to such trial.

Radhakrishnan v. State of Kerala it was held that the activity carried on in given premises will amount to “prostitution” within the meaning of Section 2 (f) of the Act only if sexual abuse or exploitation of a person is done for a commercial purpose. For the activity to become one with a commercial purpose, it should partake the character of a business or one carried on for profit.

Naseem Bano Naseem vs The State of NCT Of Delhi, it was held that Section 5 does not talk of ‘forcible prostitution. It talks of carrying on prostitution and of procuring girls for prostitution or inducing a person to become an inmate of a brothel or to take a person for prostitution. The appellant, in this case, had contended that the said woman was initially carrying on prostitution at Kotha of Laxmi situated in the same building and she was later taken for prostitution by the appellant at her kotha.

CONSTITUTION OF INDIA,1950

  • Article 23 – It specifically prohibits “traffic in human beings and beggar and other similar forms of forced labour”. (right against exploitation).
  • Article 39 – It states that men and women should have the right to an adequate means of livelihood and equal pay for equal work; that men, women and children should not be forced by economic necessity to enter unsuitable avocations; and that children and youth should be protected against exploitation. It is enshrined in the Constitution in the form of a directive to be followed while formulating policies for the State.
  • Article 39-A – It directs that the legal system should ensure that opportunities for securing justice are not denied to any citizen because of economic or other disabilities.

 Note: Articles 14, 15, 21, 22 and 24 also encompass certain provisions relating to human trafficking.

INDIAN PENAL CODE,1860

Indian Penal Code, 1860 specifically deals with two kinds of kidnapping:

(a)  Section 360 – Kidnapping from India

(b) Section 361– Kidnapping from lawful guardianship

  • Section 362 – A trafficked person can also be subjected to an act of abduction covered under this section which involves using of deceitful means by another and thereby forcefully compelling this person to go from any place.
  • Section 363-A specifically punishes any person who kidnaps or maims a minor for purposes of begging.
  • Section 365 punishes any person who kidnaps or abducts another person with intent to secretly and wrongfully confine him/her.
  • Section 366 – punishes any person who kidnaps, abducts or induces woman to compel her marriage against her will, or be forced/seduced to have illicit intercourse.
  • Section 366A- punishes any person who by any means whatsoever induces any minor girl under the age of 18 years to go from any place or to do any act that such girl may be forced or seduced to have illicit intercourse with another person.
  • Section 370 – By the Criminal Law (Amendment) Act, 2013, this section punishes all acts of trafficking in human beings and their exploitation.
  • Section 372 – If any person sells, lets to hire or disposes of any other person who is a minor i.e., under the age of 18 years for purposes of prostitution, etc. shall be punished with imprisonment of either description for a term which may extend to 10 years and shall also be liable to fine.
  • Section 373 – If any person buys, hires or obtains possession of any other person who is a minor i.e., under the age of 18 years for purposes of prostitution, etc. shall be punished with imprisonment of either description for a term which may extend to 10 years and shall also be liable to fine.
  • Sections 354, 354-A, 354-B, 354-C, and 354-D – These sections punish any person who assaults or uses criminal force on a woman intending to outrage modesty, disrobe her, or to commit an offence of voyeurism or stalking.
  • Sections 354, 354-A, 354-B, 354-C, and 354-D were added by the Criminal Law (Amendment) Act, 2013.
  • Section 366-B – Any girl under age of 21 years being imported from a foreign country by a person with an intent that she will be forced or seduced to illicit intercourse with another person, the person so importing shall be punishable with imprisonment which may extend to ten years, and shall also be liable to fine.
  • Sections 375 and 376 – These sections were added to make the justice-delivery system more responsive to the sexual offences against women. It explicitly deals with the definitions of rape, gang rape, repeatedly raped which is a major consequence of trafficking and also lays down punishments for such acts under the said sections.
  • Section 374 –The section defines that any person who compels another person to labour against his will shall be punished with imprisonment up to 1 year or fine or both. This section punishes those people who are involved in trafficking in humans with an intention to forced labour and grave exploitation.

WHO TO REPORT?

In India, human trafficking can be reported by calling on the national helpline Childline in 1098. “One can inform the following authorities: –

  • Airport police
  • Railway authorities
  • Police stations
  • State Human Rights Commission
  • District Collectorate officials.

THE TRAFFIKING IF PERSONS (PREVENTION, PROTECTION AND REHABILITATION) BILL,2018

The Bill creates a law for the investigation of all types of trafficking, and rescue, protection and rehabilitation of trafficked victims. The Bill provides for the establishment of investigation and rehabilitation authorities at the district, state and national levels. Anti-Trafficking Units will be established to rescue victims and investigate cases of trafficking.  Rehabilitation Committees will provide care and rehabilitation to the rescued victims.

  The Bill classifies certain purposes of trafficking as ‘aggravated’ forms of trafficking. These include trafficking for forced labour, bearing children, begging, or inducing early sexual maturity.  Aggravated trafficking attracts a higher punishment.

 The Bill sets out penalties for several offences connected with trafficking. In most cases, the penalties set out are higher than the punishment provided under prevailing laws.

KEY FEATURES OF THE BILL

The Bill states that its provisions will be read in conjunction with other laws and its provisions will apply only in the case of any inconsistency.  Key features of the Bill include:

  • Definition of Trafficking
  • Aggravated Trafficking
  • Protection and rehabilitation
  • Rehabilitation of victims
  • Preventive Measures
  • Special Courts
  • Penalties

COMPARISON OF EXISTING LAWS AND PROVISIONS UNDER BILL

Presently, several laws deal with specific forms of trafficking, for instance, the Immoral Traffic (Prevention) Act, 1986 covers trafficking for commercial sexual exploitation while the Bonded Labour System (Abolition) Act, 1976 deals with punishment for employment of bonded labour. 

These laws specify their own enforcement mechanism. 

As per the Statement of Objects and Reasons of the Bill, the Bill intends to serve as a comprehensive law to deal with all cases of trafficking.  However, the Bill continues to also retain all existing laws on trafficking.  This may create a parallel legal framework and enforcement machinery to deal with trafficking in certain cases.  Since each of these laws has different procedures, there could be confusion as to which procedure to apply in such cases of trafficking.

For instance, under the Immoral Traffic (Prevention) Act, 1986, Protective Homes have been set up for rehabilitation of trafficked victims of sexual exploitation.  The Bill also contemplates setting up Protection Homes.  When a victim of sexual exploitation is rescued, it is unclear as to which of these Homes she will be sent to.  Also, each of these laws designates special courts to hear offences.

In Hanumantsing Kubersing vs. State of Madhya Pradesh, the MP High Court struck down the provision conferring judicial power on an executive magistrate as unconstitutional for violating the separation of powers between executive and judiciary.

INTERNATIONAL LAW RELATED TO HUMAN TRAFFICKING

  • Article 4 of the Universal Declaration of Human Rights
  • Article 8(1) and (2) of the International Covenant on Civil and Political Rights
  • Convention on the Elimination of all Forms of Discrimination against Women (CEDAW)
  • Convention on the Abolition of Slavery, Slave Trade and Institutions and Practices of Slavery, 1956 (Slavery Convention)
  • Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others.17
  • ILO Convention Concerning Forced Labour No. 29.

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