[Disclaimer: This note is for general information only. It is NOT to be substituted for legal advice or taken as legal advice. The publishers of the blog shall not be liable for any act or omission based on this note]
“Justice will not be served until those who are unaffected are as outraged as those who are.”
– Benjamin Franklin
Objective
It is written with an objective to reflect on the laws currently in force in India, to tackle the global menace of human trafficking and contemplate the journey ahead to reach towards elimination of this socio-politico-economic evil through legislative competence, executive efficiency and judicial courage.
Introduction
According to the definition of United Nations: “trafficking is any activity leading to recruitment, transportation, harbouring or receipt of persons, by means of threat or use of force or a position of vulnerability”. Human trafficking is the trade of humans for the purpose of forced labour, sexual slavery, or commercial sexual exploitation for the trafficker or others. This may encompass providing a spouse in the context of forced marriage or the extraction of organs or tissues, including for surrogacy and ovary removal. It can happen in any community and 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 lure victims into trafficking situations. People can be trafficked and exploited in many forms, including being forced into sexual exploitation, labour, begging, crime (such as growing cannabis or dealing drugs), domestic servitude, marriage or organ removal. Human trafficking is an egregious human rights violation that occurs throughout the world. Due to its complex cross-border nature, human trafficking requires a coordinated, multi-disciplinary national and international response. Human trafficking is the third largest organised crime after drugs and the arms trade across the globe.
Legal Framework against Human Trafficking in India
At present the legal regime of trafficking in humans is explicitly and implicitly governed by the following statutes towards curbing the menace. The table containing relevant provisions is as follows:
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.
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 an 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 is 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
Constitution of India
Article 23 – It specifically prohibits “traffic in human beings and begar and other similar forms of forced labour”.
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 emcompass certain provisions relating to human trafficking.
Penal Code, 1860
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 366-A 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.
Bonded Labour System (Abolition) Act, 1976
An Act to provide for the abolition of bonded labour system with a view to preventing the economic and physical exploitation of the weaker sections of the people. The Act prohibits anyone from making any advance or compelling any person to render any bonded labour and states further that any agreement or custom requiring any person to do work as a bonded labour is void and provides for punishment for anyone who compels any person to render bonded labour or advance any bonded debt. Punishment in both cases is imprisonment up to 3 years and fine up to 2000 rupees. The bonded laborers are to be treated as victims and not as offenders.
Child and Adolescent Labour (Prohibition and Regulation) Act, 1986
An Act to prohibit the engagement of children in all occupations and to prohibit the engagement of adolescents in hazardous occupations and processes. It prohibits employment of children in hazardous industries and lays down safety measures and other requirements which shall be met irrespective of what is stated in other labour legislations.
Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989
An Act to prevent the commission of offences related to atrocities against the members of the Scheduled Castes and the Scheduled Tribes, to provide for Special Courts and exclusive Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences. Many victims are from marginalised groups because traffickers are targeting on vulnerable people in socially and economically backward areas. This Act provides an additional tool to safeguard women and young girls belonging to SC/ST and also creates greater burden on the trafficker to prove his lack of complicity in the crime. This can be effective if the offender knows the status of victim. It specifically covers certain forms of trafficking, forced or bonded labour and sexual exploitation of women. A minimum punishment of 6 months is provided that could extend up to 5 years in any offence covered under the Act regarding trafficking in humans.
Transplantation of Human Organs and Tissues Act, 1994
This Act deals with criminal responsibility in cases of harvesting of organs and trafficking of persons for this purpose. The perpetrator includes traffickers, procurers, brokers, intermediaries, hospital or nursing staff and medical laboratories and their technicians involved in the illegal transplant procedure. Section 11 declares prohibition of removal or transplantation of human organs for any purpose other than therapeutic purposes and Section 19 deals with commercial dealing in human organs and clarifies that it punishes those who seek willing people or offer to supply organs and such traffickers and alike shall be punished with imprisonment for a term which shall not be less than five years but which may extend to ten years and shall be liable to fine which shall not be less than twenty lakh rupees but may extend to one crore rupees.
Protection of Children from Sexual Offences Act, 2012
It has been drafted to strengthen the legal provisions for the protection of children from sexual abuse and exploitation. For the first time, a special law has been passed to address the issue of sexual offences against children. Sexual offences are currently covered under different sections in Penal Code. However, Penal Code, 1860 does not provide for all types of sexual offences against children and, more importantly, does not distinguish between adult and child victims.
Criminal Procedure Code, 1973
Responsibility for providing compensation to trafficking victims is fragmented between the Central Government and individual States. This is largely the result of Section 357 and Section 357-A CrPC. When the punishment itself contemplates sentence or fine Section 357 CrPC provides that the fine can be passed on to the victim. Even if that is not so, Section 357-A CrPC have the fund — a State fund, which can be extended to the victims of any crime (not limited to trafficking) who have suffered loss or injury. However, it fails to note the form or degree of such compensation.
Evolution through Judicial Pronouncements
What is Human Trafficking
It was clearly laid down as early as in 1953 in Raj Bahadur v. State of W.B., 1953 SCC OnLine Cal 129 that traffic in human beings mean to deal in men and women like goods, such as to sell or let or otherwise dispose of. It would include traffic in women and children for immoral or other purposes.
Heinous Nature of the Crime vis-à-vis Moral Culpability
The Court observed in Vishal Jeet v. Union of India, (1990) 3 SCC 318 that:
“The causes and evil effects of prostitution maligning the society are so notorious and frightful that none can gainsay it. It is highly deplorable and heartrending to note that many poverty stricken children and girls in the prime of youth are taken to ‘flesh market’ and forcibly pushed into the ‘flesh trade’ which is being carried on in utter violation of all cannons of morality, decency and dignity of humankind. There cannot be two opinions—indeed there is none—that this obnoxious and abominable crime committed with all kinds of unthinkable vulgarity should be eradicated at all levels by drastic steps.”
Human Trafficking and Child Prostitution
In Vishal Jeet v. Union of India, (1990) 3 SCC 318 the Court laid down following directions in this regard:
- All the State Governments and the Governments of Union Territories should direct their law enforcing authorities concerned to take appropriate and speedy action in eradicating child prostitution.
- The State Governments and the Governments of Union Territories should set up a separate Advisory Committee within their respective zones to make suggestions regarding the measures to be taken and the social welfare programmes to be implemented for the children and girls rescued from the vices of prostitution.
- All the State Governments and the Governments of Union Territories should take steps in providing adequate and rehabilitative homes manned by well-qualified trained social workers, psychiatrists and doctors.
- The Union Government should set up a committee of its own to evolve welfare programmes on the national level for the care, protection, rehabilitation, etc. of the young fallen victims and to make suggestions of amendments to the existing laws for the prevention of sexual exploitation of children.
- The Central Government and the Governments of States and Union Territories should devise a machinery of its own for ensuring the proper implementation of the suggestions that would be made by the respective committees.
- The Advisory Committee can also delve deep into devadasi system and jogin tradition and give their valuable advice and suggestions as to what best the Government could do in that regard.
Human Trafficking and Bonded Labour
The Supreme Court in Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161 has elucidated the rehabilitation of bonded labour and directed the Government to award compensation to released/rescued bonded labour under the provisions of Bonded Labour System (Abolition) Act, 1976 after taking note of serious violation of fundamental and human rights:
“The rehabilitation of the released bonded labourers is a question of great importance, because if the bonded labourers who are identified and freed, are not rehabilitated, their condition would be much worse than what it was before during the period of their serfdom and they would become more exposed to exploitation and slide back once again into serfdom even in the absence of any coercion. The bonded labourer who is released would prefer slavery to hunger, a world of ‘bondage and illusory security’ as against a world of freedom and starvation.”
It may be pointed out that the concept of rehabilitation has the following four main features as addressed by the Secretary, Ministry of Labour, Government of India to the various States Governments:
- Psychological rehabilitation must go side by side with physical and economic rehabilitation.
- The physical and economic rehabilitation has 15 major components, namely, allotment of house sites and agricultural land, land development, provision of low cost dwelling units, agriculture, provision of credit, health medical care and sanitation, supply of essential commodities, education of children of bonded labourers and protection of civil rights, etc.
- There is scope for bringing about an integration among the various central and State sponsored schemes for a more qualitative rehabilitation and to avoid duplication.
- While drawing up any scheme/programme of rehabilitation of freed bonded labour, the latter must necessarily be given the choice between the various alternatives for their rehabilitation and such programme should be finally selected for execution as would meet the total requirements of the family of freed bonded labourers to enable them to cross the poverty line on the one hand and to prevent them from sliding back to debt bondage on the other.
The Supreme Court in PUCL v. State of T.N., (2013) 1 SCC 585 directed the District Magistrates to effectively implement Sections 10, 11 and 12 of the Bonded Labour System (Abolition) Act, 1976 and expected them to discharge their functions with due diligence, empathy and sensitivity, taking note of the fact that the Act is a welfare legislation.
Human Trafficking and Child Labour
In Lakshmi Kant Pandey v. Union of India, (1984) 2 SCC 244 P.N. Bhagwati, J., observed:
“6. It is obvious that in a civilised society the importance of child welfare cannot be over-emphasised, because the welfare of the entire community, its growth and development, depend on the health and well-being of its children. Children are a ‘supremely important national asset’ and the future well-being of the nation depends on how its children grow and develop.”
The Supreme Court in M.C. Mehta v. State of T.N., (1996) 6 SCC 756 seeing the severe violation of fundamental rights in cases of child labour observed:
“… if there is at all a blueprint for tackling the problem of child labour, it is education. Even if it were to be so, the child of a poor parent would not receive education, if per force it has to earn to make the family meet both the ends. Therefore, unless the family is assured of income aliunde, problem of child labour would hardly get solved; and it is this vital question which has remained almost unattended.
… if employment of child below the age of 14 is a constitutional indiction insofar as work in any factory or mine is concerned, it has to be seen that all children are given education till the age of 14 years in view of this being a fundamental right now, and if the wish embodied in Article 39(e) that the tender age of children is not abused and citizens are not forced by economic necessity to enter avocation unsuited to their age, and if children are to be given opportunities and facilities to develop in a healthy manner and childhood is to be protected against exploitation as visualised by Article 39(f), it seems to us that the least we ought to do is see to the fulfilment of legislative intendment behind enactment of the Child and Adolescent Labour (Prohibition and Regulation) Act, 1986.”
In view of the Child and Adolescent Labour (Prohibition and Regulation) Act, 1986 the offending employer must be asked to pay compensation for every child employed in contravention of the provisions of the Act a sum of Rs 20,000 which is to be deposited in Child Labour Rehabilitation-cum-Welfare Fund.
Constitution of Committee to Combat Trafficking in Humans
In Gaurav Jain v. Union of India, (1997) 8 SCC 114, the Supreme Court passed an order directing, inter alia, the constitution of a committee to make an in-depth study of the problems of prostitution, child prostitution, and children of prostitutes, to help evolve suitable schemes for their rescue and rehabilitation.
The Supreme Court observed:
“27. … The ground realities should be tapped with meaningful action imperatives, apart from the administrative action which aims at arresting immoral traffic of women under the Immoral Traffic (Prevention) Act through inter-State or Interpol arrangements and the nodal agency like the CBI is charged to investigate and prevent such crimes.”
The Central Government pursuant to the directions issued by the Supreme Court in Gaurav Jain case constituted a “Committee on the Prostitution, Child Prostitutes and Plan of Action to Combat Trafficking and Commercial and Sexual Exploitation of Women and Children”.
Vocational Trainings and Social Welfare Boards
The Supreme Court in Budhadev Karmaskar v. State of W.B., (2011) 11 SCC 538 had issued notice to all States while noting down the concern on the pathetic conditions of sex workers:
“… we strongly feel that the Central and the State Governments through Social Welfare Boards should prepare schemes for rehabilitation all over the country for physically and sexually abused women commonly known as prostitutes as we are of the view that the prostitutes also have a right to live with dignity under Article 21 of the Constitution of India since they are also human beings and their problems also need to be addressed.
A woman is compelled to indulge in prostitution not for pleasure but because of abject poverty. If such a woman is granted opportunity to avail some technical or vocational training, she would be able to earn her livelihood by such vocational training and skill instead of by selling her body. Hence, we direct the Central and the State Governments to prepare schemes for giving technical/vocational training to sex workers and sexually abused women in all cities in India.”
Critical Analysis — Old Wine in a New Bottle
There need to be a comprehensive single legislation that will cover all forms of trafficking. Hence, the Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018 was introduced in Lok Sabha by the Minister of Women and Child Development, Ms Maneka Gandhi on 18-7-2018 and passed in that House on 26-7-2018 which eventually lapsed later due to dissolution of the 16th Lok Sabha. The Bill provided for the prevention, rescue, and rehabilitation of trafficked persons. The present legislation/well intentioned but lapsed Bill ignored the factors that drive people to risky situations and failed to integrate the lessons learned by anti-trafficking stakeholders since the adoption of the United Nations Trafficking Protocol popularly known as “Palermo Protocol”. It adopted a belief that trafficking can be stopped through harsh punishments, rather than addressing root causes, and this indeed may have undermined, rather than protected, the human rights of trafficked persons. Implementing a rights-based approach that facilitates, and does not criminalise migration and one that promotes decent work is the most constructive approach to prevent human trafficking. This is expected to be the litmus test while drafting the next Bill.
Conclusion
While the lapsed Bill was a well-timed and well-intentioned attempt by the Indian Government to enact a comprehensive legislation which will tackle human trafficking and its fundamental problems. However, the Government was supposed to adopt a broader perspective towards trafficking in accordance with Expert Committee recommendations. Ensuring effective legislation and its implementation will take time and patience but considering Modi Government has a clear majority in Parliament and that the Women and Child Development Ministry is fully devoted towards fighting this menace, it is hoped that any new Bill will bring all stakeholders on board to enact a people-centered social legislation which addresses some of the problems identified here and in line with the expert committee recommendations.
Thus, it may be concluded using the words of Justice V.R. Krishna Iyer, without prejudice to any one gender,
“No nation, with all its boasts, and all its hopes, can ever morally be clean till all its women are really free — free to live without sale of their young flesh to lascivious wealth or commercialising their luscious figures….”