Published on: August 03,2021 11:06 IST
By Neha Choudhary
Introduction
Most of the crimes in the world occur where the victim is either in the position of helplessness or the crime has been done by immediate relatives or the acquaintance under the shelter of trust and love. The crimes are most likely to take place in a country like India where the population is increasing at a drastic level and there are limited employment opportunities.
The crime like human trafficking that we shall be discussing in this article is the most heinous one when it comes to causing harm to the human body. The decline in the employment rates is disproportionate to the increasing population in the country.
The rise in population has led to the commission of various crimes where the criminals assume that crime is the accessible and effortless way to earn money and on the other, they take advantage of the people who require money and a regular source of income.
In most cases of human trafficking, it has been documented that the victims of trafficking were either traded by their family members in exchange for money due to poverty or were being dragged out of their hometowns via fraudulent ways or deceptive promises of employment, etc.
Usually, it has been seen that trafficking had been done by the consent of the victim’s close family members and these cases were mostly in the slum areas and small villages where a shortage of money had always been an issue.
In today’s time, everyone knows how to protect themselves from the atrocities taking place in the world. We have observed multiple times when people encountered abhorrent crimes in their lifetime even though laws associated with them are in their strictest forms.
The crime of human trafficking is considered as a sin as it exploits the female body for commercial sexual favors which can be termed as ‘sexual slavery’ that destroys the person’s will to live or for various other agendas like surrogacy, removal of ova, or extraction of organs or tissues which would completely damage the human body.
The immigrants, runaway youth who are isolated from their families, innocent children with no experience, people with poor backgrounds and below poverty are generally the sufferers to the trafficking as they are the easy targets to be smuggled for exploitation as according to the reports of United Nations Office for Drugs and Crime (UNODC) in the Trafficking Protocol, the victim of trafficking includes 51% women, 28% children and 21% men.
The victims that are abused for commercial sex work are 71% women and 43% had been trafficked domestically within national borders.
The research also estimated that the traffickers were not just men but it also included 37% women whereas men were just 63%.
Human trafficking can be explained as an “organized criminal activity in which human beings are treated as possessions to be controlled and exploited.”[1]
Trafficking in person is a criminal offense against the human body due to violation of the victim’s rights as per the Human Rights Policies and thus punishments are prescribed under IPC and other relevant and applicable acts.
The Constitution of India also prohibits the crime of human trafficking and thus is unconstitutional in the eyes of law. Human trafficking is the transportation; harbor or it could be said as recruitment of people through force, deception, or fraud with the motive to earn profit by exploiting them.
The traffickers often take support of violence or fraudulent employment agencies or opportunities and fake promises of education and jobs to trick and coerce their targets.
The crime against the human body is not just against women who are exploited for sexual needs but men and children can also be the victims of this hideous crime.
The irony is that unlike the 90% of the population who discriminate the people according to their caste, religion or gender, etc., however, the traffickers do not discriminate against people and this crime is unbiased thus the victims would be exploited irrespective of the differentiations and can belong to any religion, caste, gender, place, etc.
The victims are forced, coerced, or abducted and bear life-threatening risks where in some cases they are traded for ransom, and in the failure of the same, the victim had to get into trafficking to pay off the smuggling debt.
The traffickers smuggle the human body to their ‘client’ for profit-making sex work or forced labor where the victims get exploited for money.
What is the Situation of Trafficking in Major Countries?
The cases of human trafficking have not only been recorded in India as there are lots of countries that are facing controversies about the smuggling of humans.
However, the people that are being smuggled are most likely to be dragged to other countries to minimize the risk of getting arrested by their country’s authorities and police.
The trafficking is thus the international trading business that takes place overseas which helps the lawbreakers to generate and earn a bigger amount for their account and that too without being caught and thus the trafficking racket is the third largest crime industry in the world behind drug dealing and arms trafficking and thus is the fastest-growing activity of trans-national criminal organizations.
There have been reports to confirm that not only India is a destination of the heinous offense of human trafficking, but other countries are also included in this list.
According to the research, China being the most populated country with limited employment opportunities and since some Chinese cities are poor and unplanned at the same time, China has been a source of the practice which has to be curbed as the rate is heightening at the drastic levels which would hinder the growth of the country.
Another country where there is a need to restraint the practice of human trafficking in Uganda. Being extremely poor, the nation has miserable life conditions where the young children are smuggled and forced to join the military army at a small age and they face violence on daily basis.
Equatorial Guinea has consistently been on this list since 2011 as the women were being exploited for sex trafficking and the forced labor is also a common practice in this country.
Not just women are being exploited for commercial sex work but also men are being forcefully exploited and asked to work in oil mines.
There have been reports to show the rise in the rates of sex trafficking of young Iranians in the UAE where the women are being exploited sexually within and outside the country.
It has been recorded that the victim’s passports are being confiscated and thus they remain helpless in a foreign country and are being abused by illegal means.
Ghana has also been included in the list as this nation as well as the poor life situation where children are forced to work as laborers in the coal mines and young girls are coerced into prostitution, begging, or other illegal and immoral ways to earn money.
There are other countries as well, for example, Pakistan, Nepal, Sri Lanka, and various others where the crime of trafficking has been reported.
What are the Laws Related to Trafficking in India?
India has the strictest and severe laws amongst all the other countries that even forced labor and trafficking in humans is unconstitutional and prohibited under Articles 23 and 24 of the Constitution yet, the citizens of the country are forced to work in the same bog where they had to bear outcomes and still no actions are being taken in most of the cases.
The laws that ban and criminalizes the offense of human trafficking for implantation, commercial sex work, forced labor, and other activities are as follows:
- The Indian Penal Code, 1860
The Indian Penal Code, 1860 criminalizes the activities pertinent to trafficking in its sections accordingly which even include general provisions for illegally confining the person which can be categorized as:
According to Section 347 of IPC, “Whoever wrongfully confines any person for the purpose of extorting from the person confined, or from any person interested in the person confined, any property or valuable security or of constraining the person confined or any person interested in such person to do anything illegal or to give any information which may facilitate the commission of an offense, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.”
Likewise, IPC also criminalizes the offense of assault and use of criminal force for confining a person illegally under Section 357 and thus it quotes, “Whoever assaults or uses criminal force to any person, in attempting wrongfully to confine that person, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.”
Another important section that punishes the offender with the imprisonment of up to seven years with the fine, if he illegally kidnaps a person from India or from the lawful guardian or abducts, kidnaps and wrongfully confine the person with the intention and thus is defined under Section 363 and 365 IPC respectively.
However, these sections were the general provisions to penalize the offender for either abducting; kidnapping, or confining the person with wrongful intentions, but the Indian Penal Code in its other sections explicitly defines the offense of human trafficking and prescribes the punishment for the same.
Thus, Section 370 of IPC states, “Whoever imports, exports, removes, buys, sells or disposes of any person as a slave, or accepts, receives or detains against his will any person as a slave, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.” The section penalizes the person when that person sells or buys or by any other means exploits the human body against the victim’s will and treat him as a slave for gaining business or profit as the Constitution of India not just prohibits the trafficking but slavery in general as well and that’s why the laws related to slavery acts were imposed.
Indian Penal Code prescribes the punishment for habitual offenders who import or export, buy or sell the person in slavery business under Section 371 and also defines the punishment if someone compels the person for compulsory labor against his will under Section 374.
Indian Penal Code also mentions special provisions for sex trafficking of women, trafficking under marriage or smuggling of children, etc. under disparate sections.
Section 354 A of the Indian Penal Code acknowledges certain acts that would amount to sexual harassment which include physically contacting a woman, demanding or requesting sexual favor, showing pornography against the women’s will, or making sexual remarks. The offender of sex trafficking would be penalized under Section 376 of IPC which prescribes the punishment for rape.
There is also a special provision for the laws related to trafficking with the motive to marry which includes Section 366 IPC which prescribes the 10-year punishment for the offender who kidnaps, abducts the woman, or marries her forcefully against her will.
The minor girls who are being bought and sold with the purpose of prostitution or illegal sex work (procuration) and importing the girl under the age of 21 for illegal means or sexual slavery have also been criminalized under Section 366 A and B respectively and the same punishment has been prescribed for these offenses.
Clause (1) and (2) of Section 370 criminalizes the offense of trafficking of the minor or any other person respectively for sexual exploitation and punishes the offender for at least five years, whereas clauses (4), (5), and (6) of Section 370 of IPC criminalizes the offense of smuggling one minor, more than one minor or trafficking of minor for more than once respectively and prescribes 10-year punishment that may extend up to life imprisonment.
Section 372 of IPC states, “Whoever sells minors for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, shall be punished with imprisonment extending up to ten years, and shall also be liable to fine” and on the other hand, Section 373 of IPC punishes the one who buys the minor for the purpose of exploitation with the same punishment clause.
- The Immoral Traffic (Prevention) Act, 1956
The Government of India not just criminalizes the offense of trafficking under the Indian Penal Code but also imposes special activities for the prevention of this offense.
The Immoral Traffic (Prevention) Act, 1956 explicitly deals with the offenses of human trafficking for the motive of commercial sex business and sexual exploitation. Some of the important sections under this act are:
Section 4 of the act states “Any person over the age of eighteen years who knowingly lives, wholly or in part, on the earnings of the prostitution of any other person shall be punishable with imprisonment for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both, and where such earnings relate to the prostitution of a child, shall be punishable with imprisonment for a term of not less than seven years and not more than ten years” and thus criminalizing the practice of prostitution and living off on that income.
Section 5 of the act criminalizes the activities of Procuring, inducing, or taking a person for the sake of prostitution and prescribes the punishment as “the person shall be punishable on conviction with rigorous imprisonment for a term of not less than three years and not more than seven years and also with fine which may extend to two thousand rupees, and if any offense under this subsection is committed against the will of any person, the punishment of imprisonment for a term of seven years shall extend to imprisonment for a term of fourteen years”
Section 5A of the act criminalizes the person who recruits, transports, transfers, harbors, or receives a person for the purpose of prostitution and Section 5B states the punishment for the same as “Any person who commits trafficking in persons shall be punishable on first conviction with rigorous imprisonment for a term which shall not be less than seven years and in the event of a second or subsequent conviction with imprisonment for life.”
Section 7 of the act mentions the punishment for practicing prostitution in or in the vicinity of public places and Section 8 of the act punishes the offender for seduction in custody and etc.
- The Trafficking of Persons (Prevention, Protection, and Rehabilitation) Bill, 2018
In 2018, a Bill was passed by the Lok Sabha with the objective to prevent trafficking of persons and providing protection, cure, and rehabilitation to the victims of trafficking, and to ensure that the offenders are convicted rightfully under the prescribed laws, however, as per the recent amendment, the Bill has lapsed.
There have been various other special acts that were being imposed for the betterment and enhance the protection against the crime of trafficking in women and children for example: The Prohibition of Child Marriage Act, 2006, Bonded Labor System (Abolition) Act, 1976, Child Labor (Prohibition and Regulation) Act, 1986, and The Transplantation of Human Organs Act, 1994.
What is the Anti-Trafficking Bill of 2021?
India is a developing nation and has always been at a place where it keeps on progressing for the advancement of the country. It has signed various treaties with other countries for the growth and betterment of the citizens and the nation.
India has always tried ways to fight back the crimes and thus has also signed numerous treaties like SAARC and UNCTOC for Combatting Trafficking in Women and Children for Prostitution with an intention to curtailing the crime rate. India has also established an anti-trafficking cell and amended the bills and act for the powerful enactment of the provisions like POCSO or the 2021 Trafficking Bill after the 2018 Bill has lapsed.
In 2021, the Ministry of Women and Child Welfare released the Trafficking in Persons (Prevention, Care and Rehabilitation) Bill, 2021 for preventing the crime affiliated with trafficking against women and children and also providing cure, protection, and rehabilitation to the victims and thus has invited suggestions and comments.
The major objective of the draft as quoted by the ministry is “to prevent and counter-trafficking in persons, especially women and children, to provide for care, protection, and rehabilitation to the victims, while respecting their rights, and creating a supportive legal, economic and social environment for them”
The Anti-Trafficking Bill 2021is a re-attempt for the 2018 failed draft as the Bill raised certain concerns which according to experts are being covered and addressed in the 2021 draft.
The 2018 Bill dealt with the offense of trafficking, methods to prevent such practice and thus explained the protection and rehabilitation that should be provided to the victims.
Thus the 2021 Bill expanded its scope which also included the offenses outside the country, made NIA the National Investigation Authority to look into the matters, explained the victims of the offenses, explicitly mentioned the penalties and also prescribed death punishment in major offenses like in an offense against a minor less than twelve years of age or offense of repeated rape the person shall be punished with rigorous imprisonment for twenty years that may extend to life and death penalty in case of subsequent convictions.
Though the Government of India has laid down special acts to prescribe punishment to the official and major authorities and the crimes are being defined in different acts like defense personnel shall be penalized under the act that governs his authority and not under the Indian Penal Code but the Anti-Trafficking Bill 2021mentions the scope and thus included the defense personnel, Government official, doctors or other authorities as well.
The definition of exploitation has been amended as it states “exploitation includes causing of harm to or taking of benefit or gain from a victim without due or appropriate consideration, compensation or return in any form or manner for the benefit or gain of another person who himself may or may not be the perpetrator of such exploitation” thus it includes exploitation for sexual use, forced labor, slavery, implantation of organs, drug trials or even biomedical research experiments.
The 2021 Bill covered the scope of protection to transgender as well and not just stuck to the ambit of protection to women and children from trafficking.
The Bill also states that for being considered as a victim of the offense of trafficking, there is a basic need to be transported from one place to the other.
After the act has been enacted and passed by the Parliament, an official committee i.e. National Anti-Human Trafficking Committee will be established to ensure effective provisions and thus home secretary will chair it along with the secretary of Women and Child Development.
Landmark Judgments
- People’s Union for Democratic Rights Vs Union of India[2]
Supreme Court Defined Forced Labor
In the case of the People’s Union for Democratic Rights Vs the Union of India, due to the increased cases of trafficking with the purpose of labor in every part of the country, the Supreme Court stated the meaning of forced labor under Article 23 of the Constitution of India. The Supreme Court quoted that:
“Whether there is any breach of Article 23 when a person provides labor or service to the State or to any other person and is paid less than the minimum wage for it. It is obvious that ordinarily, no one would willingly supply labor or service to another for less than the minimum wage when he knows that under the law he is entitled to get minimum wage for the labor or service provided by him. It may therefore be legitimately presumed that when a person provides labor or service to another against receipt of remuneration which is less than the minimum wage, he is acting under the force of some compulsion which drives him to work though he is paid less than what he is entitled under law to receive.”
Thus, the Court held that:
“We are therefore of the view that where a person provides labor or service to another for remuneration which is less than the minimum wage, the labor or service provided by him clearly falls within the scope and ambit of the words “forced labor” under Article 23. Such a person would be entitled to come to the court for enforcement of his fundamental right under Article 23 by asking the court to direct payment of the minimum wage to him so that the labor or service provided by him ceases to be “forced labor” and the breach of Article 23 is remedied. It is therefore clear that when the petitioners alleged that minimum wage was not paid to the workmen employed by the contractors, the complaint was really in effect and substance a complaint against violation of the fundamental right of the workmen under Article 23.”
- Laxmi Kant Pandey Vs Union of India[3]
Necessary Guidelines to Check Inter-Country Adoption Rackets
In the case of Laxmi Kant Pandey Vs Union of India, the Supreme Court laid down the guidelines to monitor the intercountry adoption as to check trafficking rackets in the name of adoption and stated that:
“It is necessary to bear in mind that the primary object of giving the child in adoption being the welfare of the child, great care has to be exercised in permitting the child to be given in adoption to foreign parents, lest the child may be neglected or abandoned by the adoptive parents in the foreign country or the adoptive parents may not be able to provide to the child a life of moral or material security or the child may be subjected to moral or sexual abuse or forced labor or experimentation for medical or other research and may be placed in a worse situation than that in his own country”
- Gaurav Jain Vs Union of India[4]
Committee Formed to Frame the Permanent Plan of Action and Schemes
The Supreme Court, in this case, ordered the Central Government to form the committee to rehabilitate the victims of trafficking i.e. women and children with the view that such actions would give equal opportunity and status to the women and their children as well, as their right to life were being violated.
The Supreme Court ordered such direction intending to rehabilitate the fallen out women that were trapped in prostitution and provide them the dignity that is the basis of the Constitution.
- Geeta Kancha Tamang Vs State of Maharashtra[5]
Bail of Women Traffickers was denied
The Supreme Court in this case denied the release of the women traffickers who served the punishment for 14 months because trafficking is strictly prohibited by the Constitution and thus everyone has the right not to be trafficked and exploited and thus shall be considered as violence against human rights. The court stated that:
“The offense is prone to repetition since the Applicant is shown to be a brothel owner and accordingly carries on the business of running a brothel, in which, inter alia, a child was detained. Despite the specific provision under Section 18 of the ITP Act, the learned APP states, upon instructions, that the prosecution has not taken any steps for closure of the brothel or for eviction of the offenders from the brothel premises. In fact, the Applicant’s Advocate also stated to Court that the brothel has not been sealed, as required under Section 18 of the ITP Act. The same offense, albeit for violations upon other persons, including children, is liable to be committed if the Applicant is released since she is the owner of the brothel which has not even been closed/sealed.”
- Radhakrishnan Vs State of Kerala[6]
Meaning of ‘Prostitution’ within the meaning of Section 2(f)
It was held in this case that for the activities to amount to ‘prostitution’ within the ambit of Section 2(f) of the Immoral Traffic Act, then there must be sexual abuse or exploitation of a person for commercial purposes and take the form of business and for generating profit.
- In the case of Kamalabai Jethamal Vs the State of Maharashtra[7]
Removal of a prostitute
The Supreme Court while stating the judgment in an appeal challenging the removal of a prostitute from the house and conflicting her conviction as the bad decision under the provisions as the procedure followed and search was not according to the Code of Criminal Procedure, 1973 and thus it was held that High Court had powers to order her eviction under section 18 of SITA after she was prosecuted under Section 3 of the Immoral Traffic Act.
- State of A.P. Vs Bodem Sundara Rao[8]
Grant of Stricter Punishment in Offences Against Women
The Supreme Court increased the imprisonment to 7 years and observed that:
“In recent years, we have noticed that crimes against women are on the rise. These crimes are an affront to the human dignity of society. Imposition of grossly inadequate sentence and particularly against the mandate of the legislature not only is an injustice to the victim of the crime in particular and the society as a whole in general but also at times encourages a criminal. The courts have an obligation while awarding punishment to impose appropriate punishment so as to respond to society’s cry for justice against such criminals. Public abhorrence of the crime needs a reflection through the court’s verdict in the measure of punishment. The courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering the imposition of the appropriate punishment. The heinous crime of committing rape on a helpless 13/14-year-old girl shakes our judicial conscience. The offense was inhuman.”
Conclusion
Human trafficking is an atrocious crime against the human body as the person being trafficked is exploited through illegal means to earn money. Most of the time, the victims of human trafficking have been reported to be sold by their family members due to poverty and shortage of sources or the victims are the immigrants who are illegally residing in a country and are being blackmailed due to the fake documentations or are under-aged children who are inexperienced or youth who have been trapped due to fraudulent or deceptive promises of employment, education, marriage, etc.
The crimes against the person who is being smuggled are not just increasing in India but in various other countries as well like the USA, Sri Lanka, Nepal, Pakistan, China, etc.
Even though India has a major provision that prescribes the strictest punishments for the traffickers and offenders yet the illegal smuggling of young children or women for commercial sex work, forced labor or implantation has not been stopped.
In 2021, the Government of India drafted a Bill that enhanced the penalties of these offenses and even prescribed death punishments in major cases, and thus a positive step has been taken towards the betterment of the situation of exploitation which even the Constitution prohibits.
References
- Mariam Webster dictionary ↑
- People’s Union for Democratic Rights Vs Union of India, (1982) 3 SCC 235 ↑
- Laxmi Kant Pandey Vs Union of India, (1984) 2 SCC 244 ↑
- Gaurav Jain Vs Union of India, (1997) 8 SCC ↑
- Geeta Kancha Tamang Vs State of Maharashtra, Criminal Appeal No. 858 of 2009 ↑
- Radhakrishnan Vs State of Kerala, Crl.MC.No. 4428 of 2016 ↑
- Kamalabai Jethamal Vs The State of Maharashtra, 1962 AIR 1189 ↑
- State of A.P. Vs Bodem Sundara Rao, [(1995) 6 SCC 230: 1995 SCC (Cri) 1097] ↑