Human Trafficking is a past that the present has not been able to part from. It can look like anything from bonded labour to commercial sexual exploitation; being used as pawns in terrorist/insurgent groups to forced marriages in areas of skewed sex ratio. According to the National Crime Records Bureau, a total of 8,132 cases of human trafficking were reported in India in 2016 under the Indian Penal Code, 1860. Of these, the highest number of persons were trafficked for forced labour (45.5%), followed by prostitution (21.5%). The connection between human rights and human trafficking is conspicuous. To capture the bodily autonomy of a person with the intention of selling it for any purpose that accrues some economic gain is in absolute contravention of the right to a dignified life of any person. Human right laws have unequivocally established the fundamental immorality and unlawfulness of one person appropriating the legal personality, labour or humanity of another. Human right laws has prohibited discrimination on the basis of race and sex; it has demanded equal or at least certain key rights for non-citizens; has decried and outlawed arbitrary detention, forced labour, debt bondage, forced marriage, and the sexual exploitation of children and women; and has championed freedom of movement and the right to leave and return to one’s own country.
2. Important Elements of Trafficking:
The Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, 2000, (Trafficking Protocol) supplementing the United Nations Convention against Transnational Organized Crime, defines the term “trafficking in persons” as follows:
(a) “Trafficking in persons” shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs;
(b) The consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used;
(c) The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered “trafficking in persons” even if this does not involve any of the means set forth in subparagraph (a) of this article.
The 3 (three) key elements that must be present for a situation of trafficking of adults are: (i) action (recruitment); (ii) means (threat); and (iii) purpose (exploitation).
For trafficking of children, i.e. any person below the age of 18 years of age, the element of threat / means is not required. It is necessary to show an “action” such as recruitment, buying and selling; and that this action was for the specific purpose of exploitation.
As noted by the drafters of the Trafficking Protocol: “once it is established that deception, coercion, force or other prohibited means were used, consent is irrelevant and cannot be used as a defence.”
3. International instruments implemented by India to combat human trafficking:
(a) The United Nations Convention against Transnational Organized Crime (UNCTOC), adopted by the General Assembly resolution 55/25 of 15 November , 2000 along with the Trafficking Protocol: This was ratified by India on 05.05.2011. The TraffickingProtocol is the first global legally binding instrument with an agreed definition on trafficking in persons. The definition has been framed with a purpose to evolve similar characteristics and be at par with the national approaches with regard to the establishment of domestic criminal offences that would support efficient international cooperation in investigating and prosecuting trafficking in persons cases. The Protocol further provides for protection and assistance to the victims of trafficking in persons with full respect for their human rights.
(b). SAARC Convention, 2002: The SAARC Convention on Preventing and Combating Trafficking in Women and Children for Prostitution, 2002 has been ratified by India. The main objective of the SAARC Convention was to promote cooperation among the member states to deal with “prevention, interdiction and suppression of trafficking in women and children; the repatriation and rehabilitation of victims of trafficking and prevent the use of women and children in international prostitution networks, particularly where the countries of the SAARC region are the countries of origin, transit and destination”. Under this Convention a Regional Task Force was constituted to implement the SAARC Convention and to undertake periodic reviews.
(c). Bilateral and Multilateral Mechanism: A bilateral mechanism is an agreement between two groups or countries that are directly concerned; accordingly a multilateral mechanism is an agreement between multiple groups or countries. India has signed quite a few bilateral and multilateral Memorandum of Understanding (MOU) with various countries concerning human trafficking. An instance of such MOU is between India and Bangladesh on Bi-lateral Cooperation for Prevention of Human Trafficking in Women and Children, Rescue, Recovery, Repatriation and Re-integration of Victims of Trafficking signed in June, 2015. Further, India has also executed such MOU with United Arab Emirates. The SAARC Convention, 2002 and theUNCTOC, 2000 are also some of the examples of such mechanism. For dealing with cross border trafficking and to address the various issues relating to prevention of trafficking, victim identification and repatriation and make the process speedy and victim-friendly between India and Bangladesh, a Task Force of India and Bangladesh was constituted. So far five meetings of Task force between India and Bangladesh have been held. The fifth meeting was held on 17-18 August, 2015 at Dhaka, Bangladesh.
4. Laws relating to Prevention of Human Trafficking in India:
In addition to the international instruments, India has a strong constitutional, legislative and statutory framework prohibiting human trafficking illegal.
Following are various provisions relating to Prevention of Human Trafficking:
A. Constitutional Provisions:
- Article 23: Article 23(1) reads “Traffic in human beings and beggar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law.”
Article 23 (1) prohibits antisocial practices of beggary (forced unpaid work), traffic in human beings and forced labour. This is a fundamental right that can be enforced not just against the state but also any citizen. The term “other similar forms of forced labour” is to be interpreted as ejusdem generis under the contemplation of the article (except conscription by the state as laid down in Article 23).
2. Article 39: Article 39(e) of the Directive Principle of State Policy (DPSP) provides that children in their tender age should not be forced to work and prevents the abuse of the health and strength of men and women by being forced by economic necessity to enter a vocation that are unsuitable to their age and strength. Article 39(f) further lays down measures for protection of children and youth against exploitation, moral and material abandonment.
Although not enforceable, the DPSPs are fundamental in the governance of the Country and impose a moral obligation on the state for their application.
B. The Immoral Traffic (Prevention) Act, 1956:
The Act criminalizes commercial sexual exploitation of all groups. Under this Act, running brothels, leasing out premises to run a brothel, living off of the prostitution of someone else knowingly (wholly/partly) are punishable offences. Even solicitation or seduction for the purpose of prostitution stands illegal. Prostitution in itself isn’t rendered illegal anywhere. However, any woman soliciting anyone in a public place for the purpose of prostitution is punishable with upto 6 (six) months of imprisonment or fine extending to Rs. 500/- (Rupees Five Hundred) or with both on first conviction. Upon subsequent conviction, it’s punishable with imprisonment for a term up to 1 (one) year and fine up to Rs. 500/- (Rupees Five Hundred).
The Act deals with offences involving children and minors with severity. Offences such as procurement/inducement of children/minors for purposes of commercial sexual exploitation are met with enhanced penalties. The Act stipulates that children and minors found on the premises of a brothel and if on medical examination sexual abuse is found- it is presumed that they have been detained for the purpose of prostitution/commercial sexual exploitation (unless the contrary is proven). All offences under this Act are reckoned to be cognizable.
C. Criminal Law (Amendment) Act, 2013:
Section 370 of Indian Penal Code (IPC) has been substituted with new Sections, 370 and 370A. It deals with trafficking of persons for exploitation. The amendment stipulates that, if a person (a) recruits, (b) transports, (c) harbours, (d) transfers, or (e) receives, a person, by using threats, or force, or coercion, or abduction, or fraud, or deception, or by abuse of power, or inducement for exploitation including prostitution, slavery, forced organ removal, etc. will be punished with imprisonment ranging from at least 7 (seven) years to imprisonment for the remainder of that person’s natural life depending on the number or category of persons trafficked. Employment of a trafficked person will attract penal provision as well.
This amendment had come as a result of the nationwide outpour of rage and despair post the incident of Nirbhaya. It lays down extensive measures to negate the peril of human trafficking including trafficking of children from exploitation in any form including physical, sexual, slavery, servitude, or the forced removal of organs.
D. The Protection of Children from Sexual Offences (POCSO) Act, 2012:
The POCSO Act, 2012 is a gender neutral legislation. It defines a child as any individual below 18 years of age. The definition of child sexual abuse is comprehensive and includes penetrative sexual assault, aggravated penetrative sexual assault, sexual assault, aggravated sexual assault, sexual harassment,using child for pornographic purpose, and trafficking of children for sexual purposes. These offences are considered as “aggravated”, when the abused child is deranged or when such abuse is committed by a person in a position of trust or authority vis-ã-vis the child. The Act prescribes stringent punishment graded as per the gravity of the offence, with a maximum term of rigorous imprisonment for life, and fine.
E. The Prohibition of Child Marriage Act, 2006:
Child marriage is a social evil that has been an inimical force in the Indian society and a comprehensive legislation was needed to address this. This gender-neutral act recognises a child as any person not having attained 18 (eighteen) years of age. It seeks to penalise anyone who abets, promotes or permits the solemnization of child marriage. Furthermore, as per Section 12 of the Act it declares any child marriage as void in the event the child:
- “ is taken or enticed out of the keeping of the lawful guardian; or
- by force compelled, or by any deceitful means induced to go from any place; or
- is sold for the purpose of marriage; and made to go through a form of marriage or if the minor is married after which the minor is sold or trafficked or used for immoral purposes, such marriage shall be null and void”.F. The Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018:
This bill addresses the requirement of a law for investigation of all types of trafficking, and rescue, protection and rehabilitation of trafficked victims. It lays down measures and penalties for several offences vis-a-vis trafficking. The bill also categorizes certain purposes for trafficking as “aggravated” such as trafficking for forced labour, bearing children, begging, or for inducing early sexual maturity, that attracts a higher penalty. However, this bill does not cover all ambits of trafficking and has been criticized for not including trafficking for commercial sexual exploitation as an “aggravated” form of trafficking. The burden has also been shifted on the accused for proving himself innocent even when there is no legitimate or evidentiary basis for this accusation. This contravenes the “innocent until proven guilty” principle of our jurisprudence.
G. Other legislations that address human trafficking:
In addition to the above, there are other specific legislations that deal with human trafficking. Some of them are:
- Bonded Labour System (Abolition) Act, 1976;
- Child Labour (Prohibition and Regulation) Act, 1986;
- Transplantation of Human Organs Act, 1994;
- Indian Penal Code, 1860
- Juvenile Justice Act, 2000
- The Punjab Prevention of Human Smuggling Act, 2012.
- Goa Children Act, 2002.5. Governmental Measures:
Though not exhaustive, below are the few initiatives of the Government of India to uproot Human-Trafficking:
A. Anti Trafficking Cell: The Anti Trafficking Cell, set up by the Ministry of Home Affairs, deals with matters pertaining to human trafficking and aims at combating the menace of human trafficking. The Anti Trafficking Cell is inter alia responsible for:
i. gathering and anatomizing data related to trafficking from the State Governments, Union Territory Administrations,
ii. identifying areas and analyzing the causes for their being source/transit/destination areas,
iii. monitoring action taken by the State Governments/ Union Territory Administrations for combating human trafficking
iv. organizing or co-ordination meetings with the nodal Police Officers of States/ Union Territories.
B. Anti – Human Trafficking Units: Setting up of Anti-Human Trafficking Units at District level in one of the initiatives of the Government of India to combat human trafficking. The Anti-Human Trafficking Units has been set up with the objective of eradicating and uprooting of human trafficking.
C. Integrated Child Protection Scheme (ICPS): ICPS has been implemented by the Ministry of Women and Child Development for creation and management of infrastructure and human resources necessary for establishing a safe and secure environment for children, especially for children in difficult circumstances. The Government has provided financial assistance to States and Union Territories for improving, setting up and maintenance of Homes, Specialised Adoption Agencies (SAAs) and Open Shelters for children in need of care and protection.
D. Ujjawala Scheme: This scheme has been implemented for prevention of trafficking and rescue, rehabilitation, re-integration and repatriation of victims of trafficking for commercial sexual exploitation.
E. Web Portal on Anti-Human Trafficking: The Anti – Human Trafficking website has been launched in February, 2014 by the Government for effective implementation of Anti-Human Trafficking measures.
6. Judicial Pronouncement:
The Supreme Court, on number of occasions have upheld human rights and protected the fundamental rights of the citizens. Some of them are:
- v. State of T.N.: The Supreme Court directed that children should not be employed in hazardous jobs in factories for manufacture of match boxes and fireworks, and positive steps should be taken for the welfare of such children as well as for improving the quality of their life.
- Bandhua Mukti Morcha v. Union of India: In this case, the Court considered aspects relating to bonded labour and also relating to various laws which protect labour, bonded or free. The Court provided for the upliftment of the working conditions of bonded labourers and ensured that the rights of labourers are protected.
- .: The Supreme Court, in this case, directed that the employers of children below 14 years must comply with the provisions of the Child Labour (Prohibition and Regulation) Act, 1986, providing for compensation, employment of their parents / guardians and their education.
- : The Supreme Court held that the children of the prostitutes have the right to equality of opportunity, dignity, care, protection and rehabilitation so as to be part of the mainstream of social life without any pre-stigma attached on them. The Court directed for the constitution of a committee to formulate a scheme for the rehabilitation of such children and child prostitutes and for its implementation and submission of periodical report of its registry.
- : In thisPublic Interest Litigation, the Supreme Court of India directed the Law Commission to consider certain important issues regarding sexual abuse of children submitted by the petitioner and the feasibility of amendment to 375 and 376 Indian Penal Code.7. Conclusion:
The convictions in cases pertaining to trafficking settled by our Honourable Courts have been abysmal. Though there exists several laws to combat human trafficking, they lack in defining the same clearly. Further, the Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018 fails to fill in the lacunae and shifts the burden on the Judiciary to interpret any potential conflicts of law. Human trafficking remains a substantial problem in India and needs to be met with an adequate system of checks and balances by the investigating authorities while promoting accountability for improper realization of duties.
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 M.C.Mehta v. State of T.N, 1991, 1 SCC283.
 Bandhua Mukti Morcha v. Union, 1984, 2 S.C.R. 67.
 M.C.Mehta v. State of T.N, 1996 6 SCC 756.
 Gaurav Jain v Union of India, 1997 8 SCC 114
 Sakshi v Union of India,1999 8 SCC 591