By Harshpreet Kaur
Published On: November 03, 2021 at 12:35 IST
Introduction
Every person has Right to live his life with dignity and it is not only our inherent right but it is also guaranteed by Article 21 of Constitution of India, it is such an basic right that even if supposedly, Constitution does not have such provision, as a Human being it is our moral duty to not harm the dignity of any person, but even in this modern era, where people are educated and have access to so much information, have laws in place, turned the slavery and exploitation to Modern Slavery and not only that, they have found various ways to exploit even more using technology for example – pornography etc.
Trafficking basically means a trade which is illegal i.e., it is prohibited by law; it can be of many types. Human trafficking also known as Modern Slavery is one of the serious violations of human rights. Any person can be victim of this crime, irrespective of gender or age. Traffickers try various way to capture their subject, either by force or coercion or by manipulating or using fraudulent means befooling innocent persons and selling them off for benefits, which mainly include monetary benefits.
United Nations office on Drugs and Crime define human trafficking as:
“Human Trafficking is the recruitment, transportation, transfer, harbouring or receipt of people through force, fraud or deception, with the aim of exploiting them for profit.”[i]
People can be trafficked for many purpose such as:
- Sexual slavery,
- Extraction of organs or tissues,
- Forced marriage,
- Forced labor,
- Domestic servitude, or,
- Commercial sexual exploitation.
Among all, women and girls are most affected, traffickers generally trade them for sexual slavery, or sexual exploitation which is the most terrible thing to be done with a women losing all her dignity and impacts her whole life.
According to study conducted by United Nation office on drugs and crime, in 2016 about:
- 51% of identified victims of trafficking are women, 28% children and 21% men
- 72% people exploited in the sex industry are women
- 63% of identified traffickers were men and 37% women[ii]
Kidnapping & Abduction Vs Human Trafficking
Section 360 of Indian Penal Code, defines Kidnapping from India as,
“Whoever conveys any person beyond the limits of India without the consent of that person, or of some person legally authorised to consent on behalf of that person, is said to kidnap that person from India”
Section 362 of Indian Penal Code, defines Abduction as,
“Whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person.”
Thus, Kidnapping/Abduction refers to a situation where a person takes away any person illegally against his will or induces them through any deceitful means.
Section 370 of Indian Penal code, defines Trafficking as,
“Whoever, for the purpose of exploitation, recruits, transports, harbours, transfers, or receives, a person or persons, by using threats, or using force, or any other form of coercion, or by abduction, or by practising fraud, or deception, or by abuse of power, or by inducement, including the giving or receiving of payments or benefits, in order to achieve the consent of any person having control over the person recruited, transported, harboured, transferred or received, commits the offence of trafficking”
While Human Trafficking refers to a situation where person illegally trade the woman for profits or commercial benefits, Human trafficking can be done for various purpose including prostitution, forced marriage, extraction of organs etc., but not limited to it.
What is Sex Slavery or Prostitution? Is Prostitution Legal in India?
Sexual slavery is a kind of slavery in which a person’s right is snatched as relating to their sexual activity, it restricts one’s freedom and autonomy and decision-making powers are given in the hands of person who bought them, and also includes forced marriages, domestic servitude or other forced labour that ultimately involves forced sexual activity. Sex slavery is also known as Forced Prostitution, this is different from Voluntary prostitution.
Forced Prostitution refers to condition when through coercion, a person is forced to be engaged in sexual activity while Voluntary Prostitution is quite opposite to it, in this a person (above 18 Years of age) by his own will chosen prostitution as an occupation or for making a livelihood.
While Forced Prostitution is strictly prohibited and illegal in any part of the world, Voluntary Prostitution have a different legal status in different countries, which range from being fully illegal and punishable by death to being legal and regulated as an occupation, except Child Prostitution which is illegal completely, as minors are not in a position to give consent legally.
Prime Facie, it looks like Prostitution is illegal in India, but that is not correct in its true sense. India has legalised Prostitution but has put certain limitations and restrictions to it unlike countries like Australia, New Zealand, Netherlands, etc. which has legalised prostitution with proper laws.
The Immoral Traffic (Prevention) Act, 1956, (ITP) regulates prostitution, and made certain activities illegal like –
- Soliciting,
- Owning or managing a brothel,
- Prostitution in a hotel,
- Child prostitution,
- Pimping,
- Inducing or kidnapping a girl for prostitution etc.
What are International Conventions on Human trafficking?
There are mainly 3 convention which are made to combat Human Trafficking for the purpose of prostitution, which are as follows:
- UN Convention
India has ratified, The United Nations Convention on Transitional Organised Crime, 2000 (UNCTOC), this protocol takes effective actions for Suppression, Preventions and Punishment of Human Trafficking and especially for Women and Children.
This convention also ensures that, all the countries who are signatory to the Protocol, are required to criminalise all forms of trafficking including sexual exploitation
- SAARC Convention
India has ratified, The South Asian Association for Regional Cooperation, 2002 (SAARC), this convention emphasised on trafficking of Women and Children for prostitution.
To fulfil the obligation of this convention, a Regional Task Force has been created, 5 meetings have already been conducted till now, a study tour was offered in the 5th meeting for SAAR members to learn from the experiences of units of Anti Human Trafficking Units (AHTUs).
- Bilateral Mechanism
A Memorandum of Understanding (MoU) has been signed by India and Bangladesh on July, 2015 on Bi-lateral Cooperation to prevent Women and Children from being trafficked cross-broader and to rescue, recover, re-integration and repatriation of the victims of such trafficking.
For speedy disposal and victim-friendly a Task Force has been created. Five meetings have been conducted so far between Task Force of India and Bangladesh.
What are the legal provision to combat Human Trafficking?
- Constitution of India
Article 23, of Constitution of India, puts prohibition of traffic in human beings and forced labour and any contravention of such by anyone will be held liable for punishment.
- Immoral Traffic (Prevention) Act, 1956
The Immoral Traffic (Prevention) Act, 1956 is the main legislation for the prevention of trafficking of women and girls for prostitution or sexual exploitation.
- Indian Penal Code
There are many provisions for Human Trafficking in Indian Penal Code but some of the main provisions for Human Trafficking for purpose of prostitution are:
Section 366A was added to Indian Penal Code for Procuration of Minor Girl, under which punishment is cast upon a person who induces any minor girl (i.e., under the age of 18 years) with intention or knowledge that she will be forced or seduced to illicit intercourse with another person.
Section 366B-was added to Indian Penal Code for Importation of girl from foreign country, under which punishment is cast upon a person who imports into India from any country outside any girl under the age of 21 years with intention or knowledge that she will be forced or seduced to illicit intercourse with another person.
Section 372 – Selling minor for purposes of prostitution, punishes a person who sell or to hire or disposes any person under the age of 18 years with intention or knowledge that such person shall at any age be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose.
Section 373 – Buying minor for purposes of prostitution, punishes a person who buys, hires or obtain possession of any person under the age of 18 years with intention or knowledge that such person shall at any age be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose.
- Protection of Children from Sexual Offences (POCSO) Act, 2012
POCSO Act, is a special law, made to provide protection to children from sexual exploitation, sexual assault, sexual harassment while safeguarding the interest of children and ensuring speedy trial and justice.
This act recognise child below the age of 18 Years, is gender neutral which means child can be girl or boy. It bring a Child-Friendly Procedure which do not traumatisation them again.
- State Specific Legislations
Many States have enacted laws governing their state to combat human trafficking like – Karnataka Devadasi (Prohibition of Dedication) Act, 1982, was made by State of Karnataka to make more effective provisions and give stringent punishments to person engaging a woman in prostitution and happens to be her parent, guardian or relative.
Goa Children’s Act, 2003, was made by State of Goa to protect, promote children from trafficking, it includes every type of sexual exploitation, and strict laws on about the safety of children and publishing pornographic materials are made.
Landmark Judgments
- Vishal Jeet Vs Union of India, 1990[iii]
“Formation of Advisory Committee ordered for all States and Union Government to Combat Trafficking”
In this case, Supreme Court observed:
That there is a growing exploitation of Women and Children for trafficking and prostitution in spite of so many laws, expectations are not meet.
That many teen-aged female children and girls are been sold even by their parents on account of poverty and unbearable miseries hoping they will engaged in manual labour but they are rather sold to brothel keepers or kidnaped by them by deceitful means and then they are treated brutally and closed in a tiny Claus trophic rooms for several days without food until they agree to the vicious desires of the brothel keepers and enter into the unethical and squalid business of prostitution.
The court ordered for an objective multi-dimensional study and an investigation into the matter and find out its causes and also measures to curb out the vices of illicit trafficking.
The court directed the Government of States and Union Territories to set up a separate Advisory Committee within their respective zones and further direct their law enforcing authorities to take appropriate and speedy actions in eradicating child prostitution without giving room for any complaint of remissness or culpable indifference.
- Prerna Vs State of Maharashtra, 2003[iv]
“Child custody in cases of trafficking must be transferred to Juvenile Justice Board or Child Welfare Committee.”
In this case Bombay High Court observed:
That Magistrate cannot exercise jurisdiction to release a minor child (i.e. under 18 years of age), it will be violation of Juvenile Justice Act, such cases must be transferred by the Magistrate to the Child Welfare Committee if such person is a child in need of care and protection or to Juvenile Justice Board if such person is a Juvenile in conflict with law.
Any Juvenile rescued from brothel should be released after the competition of inquiry by Probation Officer.
Juvenile should be released only to care and custody of parents/guardian only if they are found fit by Child Welfare Committee.
An Advocate is barred to appear in the same case for victim rescued if he is appearing for a pimp or brothel
Advocates cannot appear before the Child Welfare Committee on behalf of a juvenile only parents/guardian can appear themselves or through advocates to take custody of trafficked child
- Bachpan Bachao Andolan Vs Union of India & Ors, 2010[v]
“National Commission for Protection of Child Rights to be made the Nodal Agency for Implementation of the Juvenile Justice Act.”
In this case, Supreme Court observed:
That most of States has not implemented the provisions of Juvenile Justice (Care and Protection of Children) Act, 2000
That there is need for creating adequate infrastructure necessary for implementation of the proposed legislation, to administer and monitor and faithfully implement direction of court.
Supreme Court appointed National Commission for Protection of Child Rights as Nodal Agency under the Commissions for Protection of Child Rights Act, 2005 which will monitor the implementation of the directions passed by the Court from time to time.
Supreme Court also directed all the States to implement the provisions of this Act forthwith and constitute Juvenile Justice Boards, Child Welfare Committees and special juvenile police units in every district.
- Budhadev Karmaskar Vs State of West Bengal, 2011[vi]
“Appointment of a Panel to monitor and Suggest Rehabilitation scheme for Trafficked Sex Workers and Trafficked Victims”
In this case, Supreme Court Observed:
While dismissing an appeal of murder of sex worker, that rights of prostitutes are not provided and made an direction to Central and State government to build rehabilitation all over the country through Social Welfare Boards for sexually abused prostitutes, with a view that Article 21 gives them right as they are also human beings and their problems should also be addressed like of any other human being.
The court also directed to Central and State Government to prepare schemes for technical/vocational training for example, sewing garments etc., to sex workers and sexually abused women in every state and cities of India.
- Apne Aap Women Worldwide Trust Vs The State Of Bihar & Ors, 2014[vii]
“4 sub-headings to curb sex trafficking against women and girls: Prevention, Raid & Rescue, Rehabilitation and Prosecution.”
In this case, Patna High Court Observed:
That Bihar Government has formulated a plan – ASTITVA to combat social evil of human trafficking, i.e., to prevent, control and eradicate human trafficking, ensure proper rescue, rehabilitation etc., but was inactive according to the petitioner. The Court divided the pleadings in 4 sub-headings: Prevention, Raid & Rescue, Rehabilitation and Prosecution.
Under Prevention: Vulnerability mapping of children living in red light area, child care plan, imparting life skills to youth in red light areas, monitoring etc., were looked at.
The court directed that in every village/ ward of Gram Panchayat/ Urban agglomeration including red light area Village/ Ward Level Anti Human Trafficking Body be constituted and Government to upgrade Kasturba Gandhi Balika Vidyalaya from Class-VIII to XII as early as possible.
Under Raid & Rescue: Raid in red light areas/ other areas where children, women are in distress, rescue victims to be send for counselling, protective homes, corrective institutes were added.
Court directed to appoint a Special Police Officer to conduct regular raid/search and rescue from brothels and mandated at least 2 women police officers to be in raiding team. And rescued victim to be placed in Reception/ One Stop Crisis/ Nirbhaya Centre and to be attended by the Trauma Counsellor.
Under Rehabilitation: Victim to be given identity card like BPL, AADHAR though which they will be linked to social security schemes, vocational training etc. were included.
Court directed to establish adequate number of Protective Homes, Corrective Institutions in each district of the State by State Welfare Department to protect them, provide them vocational trainings, and provide them with identity cards.
Under Prosecution: Witness protection, Compensation etc., are included.
Court said that it is necessary for successful prosecution that cases should be registered under the ITP Act are investigated by the Special Police Officer and also prosecuted before the Special Court constituted under Section 22-A of the ITP Act.
Recent Developments on Human Trafficking for Prostitution
- Supreme Court: Order States to give dry ration to sex workers hit by Covid-19
Supreme Court ordered all States and Union Territories to provide dry ration to sex workers, without insisting on any proof of identity like- ration card etc. and who are identified by National AIDS Control Organization (NACO) and legal services authorities, as they are also entitled to live with dignity and access to food and shelter.[viii]
- Bombay High Court: Prostitution is not a criminal offence
Bombay High Court ordered release of 3 sex workers who were picked up by police following a raid at a guest house and detained at a state corrective institution in Mumbai. Justice Prithviraj Chavan said that, “prostitution had not been considered a criminal offence under the Immoral Traffic (Prevention) Act, 1956”. He further said that, “the women were “adults,” and “entitled to their fundamental right to move freely and choose their own vocation.”
The court further added that prostitution per se is not a criminal offence, however if the person is seduced for prostitution or is running a brothel that is illegal and thus amounting to criminal offense.[ix]
- Allahabad High Court: Denied bail, says no sympathy for people who forces sex traders on daughters.
The court denied bail of a person who forcibly indulge minor in prostitution and also committed rape on them. A bench of Justice Sanjay Kumar Singh opined that such activities also have a deleterious effect on society. He emphasised that “the daughters are the pride and honour of the family in a civilized society, and anyone who forces them for sex trade should not be shown sympathy.”[x]
- Arapahoe County, Colorado: Convicted a human trafficker for 472 years in prison
Brock Franklin was found guilty on 30 counts including human trafficking, sexual exploitation of a child, child prostitution, and kidnapping and operating a prostitution ring who sells young girls and women, he also used to drug these women to control them and have forced sex.
Janet Drake with the Colorado Attorney General’s office said that, “A 400-year sentence sends a strong message across the country that we’re not going to tolerate this kind of violence to women and vulnerable populations,” This is believed to be the longest-ever sentence for a human trafficking case in US history.[xi]
- Harris County, Texas: Convicted a Father for 60 Years Prison for trying to sell his 4 years daughter for sex.
A jury in Harris County, Texas, convicted a man of trafficking a child and compelling prostitution of his own daughter who is only 4 years old, he posted an advertisement on Craigslist to sell his daughter for sex and describe her as “younger than 10” and thus was charged for 2 offences for 30 years each and was not eligible to get parole until he is 75.[xii]
Conclusion
Human Trafficking is the gravest and more serious violation of Human Rights and especially when it comes down to trafficking for prostitution, even with so many laws, crime is still not reduced. A new bill has been introduced in the parliament to combat Trafficking, known as, The Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018, it was introduced on July 18, 2018 and passed by the Lok Sabha on July 26, 2018, the bill creates law for establishment of investigation of trafficking, it includes scheme for rehabilitation for victims which is to be made from district to national level, and has made stringent provisions for Aggravated trafficking.
But the bill is facing many oppositions by activist, sex workers, transgender community and child right workers on the grounds that bill is violating their rights, the activist have appealed to send the bill to standing committee. LGBTQ Activist, Vikramaditya Sahai said that, “When a law prescribes life imprisonment for trafficking leading to AIDS or begging or injecting of hormones, it will ultimately lead to criminalisation of trans-identities, further he said that, if a sex worker is violated, she won’t be able to go to court because she will be immediately understood as exploited, trafficked and sent to rehabilitation. The law will lead to increase in violence against sex workers and silence them.”[xiii]
Let’s hope that this laws will come in best interest for all and bring a change in crime against Human Trafficking.
ABOUT THE AUTHOR
Harshpreet Kaur is a final year student of LL.B. at Lloyd Law College. She has completed CS Executive and has won 1st Prize in Tax Quiz as well as Company Law Quiz. She is a very creative, responsible, self-motivated and practical person. She chose law as a career because she believes law is very interesting and she is working in this field to make the law interesting for others as well using platforms like YouTube on hp tales and Instagram on hp.tales .
Edited by: Aashima Kakkar, Associate Editor, Law Insider
Reference
[i] UN office on drugs and crimes, “Human Trafficking” (Last visited at November 3, 2021)
[ii] United Nations office on drugs and crime, “Global Report on Trafficking in Persons in 2016” (December 2016)
[iii] Vishal Jeet Vs Union of India, (1990) 3 SCC 318
[iv] Prerna Vs State of Maharashtra, 2003 (2) Mah.L. J. 105
[v] Bachpan Bachao Andolan Vs Union of India, (2010) 12 SCC 180
[vi] Budhadev Karmaskar Vs State of West Bengal, (2011) 11 SCC 538
[vii] Apne Aap Women Worldwide Trust Vs The State Of Bihar & Ors 2015 (1) PLJR 268
[viii] Sanya Talwar, “SC Directs States To Provide Dry Rations For Identified Sex Workers Sans Insistence On Identity Proof & File Affidavit On Benefits Accrued” (Last visited at November 3, 2021)
[ix] “Prostitution not a criminal offence’ : Bombay High Court order releases 3 sex workers”, (Last visited at November 3, 2021)
[x] Saprash Upadhayay, “Daughters Are Family’s Honor; People Who Force Them Into Sex-Trade Not Entitled To Any Sympathy: Allahabad HC Denies Bail” (Last visited at November 3, 2021)
[xi] “Colorado Child Sex Trafficker Sentenced to 472 Years in Prison” (Last visited at November 3, 2021)
[xii] “A father gets 60 years in prison for trying to sell his daughter for sex. She was 4” (Last visited at November 3, 2021)
[xiii] Jagriti Chandra, “Activist oppose draft anti-trafficking” (Last visited at November 3, 2021)