Human trafficking in India has become a rampant affair. Children and young girls from a rural background are the worst victims of human trafficking. They are bought to urban areas or to other states to work as domestic helpers in households or in small-scale industries. They adolescents are coerced to beg or sell knick-knacks on the streets of cities. The most vulnerable section, i.e. women and children are often sold into the commercial sex trade market, illegal organ trade racket etc. Many times people are lured to work abroad with lucrative job offers.
Trafficking Laws under IPC
Sections 370 and 371 aim at the suppression of slavery.Section 370 punishes importing, exporting, buying, selling or disposing of a person as a slave.The offence is non-cognizable, bailable, non-compoundable and triable by a Magistrate of the first class. It is punishable with imprisonment that may extend to imprisonment up to 7 years and fine. “The ingredients laid down u/s 370 are as follows:-
a. The accused imported, exported, bought, sold or disposed of any person as a slave;
b. The accused accepted, received or detained such person as a slave.”[1]
Section 371 seeks to punish a habitual dealer in slaves. A person who steals a child in order to sell him as a slave is punishable under this section. The offence is non-cognizable, non-bailable, non-compoundable and triable by the Court of Session. Punishment may extend to 10 years of imprisonment and fine.
Section 372 and 373 punish the trade of selling and buying minors for purposes of prostitution. These sections are in consonance with article 23 of the Constitution which prohibits traffic in human beings and sanctions punishment for practising such acts. The former section punishes the sale of minor girls below the age of 18 years for the purpose of prostitution, illicit intercourse or for any other unlawful and immoral purposes.[2]The offence consists of the intentional or conscious exposure of a minor girl to the danger of degradation.[3]The buying or hiring of minor girls must be from a third person.[4] The offence is cognizable, bailable and triable by the Court of Sessions. Punishment may extend to 10 years of imprisonment and fine. Section 373 punishes buyers or hirers of minor girls for the prostitution, illicit intercourse or for any other unlawful and immoral purposes.
Labour Trafficking
Another form of modern slavery, wherein labour services are given due to the use of force, fraud, violence, threats or coercion by the traffickers against their will.Common types of labour trafficking include people forced to work in homes as domestic servants, farmworkers coerced through violence as they harvest crops or factory workers held in inhumane conditions with little to no pay.[5]
Sex Trafficking
Sex trafficking is another form of human trafficking. Forced prostitution is another term for sex trafficking. It is a plague for humanity. Use of force or coercion is the driving force behind sex trafficking.
Other Laws on Trafficking
There are some other laws on the subject matter which include The Immoral Traffic (Prevention) Act, 1956, Protection of Children from Sexual Offences Act, 2012, Prohibition of Child Marriage Act, 2006, Bonded Labour System (Abolition) Act, 1976, Child Labour (Prohibition and Regulation) Act, 1986, and Transplantation of Human Organs Act, 1994.[6]
- Article 23(1) of the Indian Constitution prohibits ‘begar’ and other similar forms of forced labour. It also provides that any contravention of the said prohibition shall be an offence punishable in accordance with law. Article 35(a)(ii) confers power on the Parliament to provide punishment for the contravention of the prohibition and exclusively takes away the power State Legislature.
- Bonded Labour System (Abolition) Act, 1976– The Act has been passed to provide for the abolition of bonded labour system with a view preventing the economic and physical exploitation of the weaker sections of the people and for matters connected therewith or incidental thereto.[7] Section 4 provides for the abolition of bonded labour system and section 5 declares an agreement, custom etc. to be void to that extent. Chapter III (sections 6-9) deal with the liabilities to repay bonded debt shall stand extinguished upon the commencement of the Act.
- Child Labour (Prohibition and Regulation) Act, 1986– There are a number of enactments which prohibit the employment of children below 14 and 15 years in specified employment. Prior to the Act, there was no law specifying the hazardous employments and no regulations for the working conditions of children. Part II (sections 3-5) of the Act sheds light on the prohibition of employment of children in certain occupations and processes. Regulations regarding conditions of work of children are contained in Part III (sections 6-13).
- Transplantation of Human Organs Act, 1994 – It is a sui generis legislation on the subject matter. It regulates the removal, storage and transplantation of human organs for therapeutic purposes and for the prevention of commercial dealings in human organs.
Comparative Analysis of Human Trafficking in other Countries
Position in United States
The Trafficking Victims Protection Act, 2000 can be said to be the first comprehensive federal law addressing trafficking in persons which got further amended in 2003, 2005, 2008, and 2013. The law has threefold objectives namely, prevention, protection, and prosecution. Some other legislation on the subject matter includes Justice for Victims of Trafficking Act of 2015, the Runaway and Homeless Youth Act, the Child Abuse Prevention and Treatment Act and the Preventing Sex Trafficking and Strengthening Families Act of 2014.
Position in United Kingdom
The law at the UK prohibits all forms of trafficking. In England, Wales, and Northern Ireland, human trafficking offences are governed by the Coroners and Justice Act 2009, the Sexual Offenses Act 2003, and the Asylum and Immigration Act 2004, which prescribe penalties of a maximum of 10, 14, and 14 years’ imprisonment, respectively.[8]
The Modern Slavery Act 2015 was enacted in March 2015 integrating a variety of criminal offences used to prosecute traffickers into one act and it prescribed penalties ranging from fines to life imprisonment for trafficking offences, which are sufficiently stringent and commensurate with those prescribed for other serious crimes.[9]
In Scotland, the Criminal Justice Act 2003, the Criminal Justice and Licensing Act 2010, and provisions of the UK’s Asylum and Immigration Act 2004 prohibit trafficking.[10] Northern Ireland enacted the Human Trafficking and Exploitation Act in January 2015; the act unifies existing anti-trafficking statutes and provides support for victims of human trafficking on a statutory basis.[11]
Position in Russia
Russia has become a major hub of human trafficking. After the collapse of Soviet Union in the 1990s, the problem became pressing as thousands of women and minors trafficked out of Russia into prostitution, particularly to Europe, Israel, the United Arab Emirates, Saudi Arabia, Scandinavia, China and North America. In December 2003, the Criminal Code of Russian Federation was amended to insert article 127.1 was inserted thereby penalizing human trafficking. Article 127.2 was later added to combat slavery.
Position in Pakistan
The Prevention of Trafficking in Persons Act, 2018 and The Prevention of Smuggling of Migrants Acts, 2018 has been passed to safeguard the rights of victims of human trafficking and smuggled migrants, on the one hand, and empower the law enforcement agencies of Pakistan to effectively prosecute the organized gangs perpetuating and benefitting from these crimes, on the other. [12]
Position in Thailand
The Prevention and Suppression of Prostitution Act, 1996, replaced the Suppression of Prostitution Act, 1960. It criminalizes prostitution with imprisonment and/or a fine.[13]
Illustrations
Illustration 1
X, a 17-year-old girl was sold for Rs. 10,000/- under the pretext of being married to a 40-year old man. Her father had expired. The mother was financially handicapped to run the family. When her land was being taken over by the villagers, she went to the police station to lodge a complaint. The police criminally assaulted her. She was given Rs. 1000 by the police stating that he would help her. She was then introduced to people who pulled her into the racket of child trafficking. She was sent to various places.
Illustration 2
A, who was a 32-year-old woman is the sole bread earner of her family. She is a mother of five children. Her husband is unwell and cannot work. She befriended a woman who sympathized with her financial condition and promised her a job in a hospital as an attendant at her workplace. She followed her but little did she know where she was to land herself. She was beaten with a ladle for refusing to work as a prostitute. The lady there said that she had paid for her. That’s why she can’t refuse to work.
Illustration 3
Punjabi pop singer Daler Mehendi and his brother were sentenced to two years imprisonment by the Patiala Court. The complainants alleged that the brothers had taken ‘passage money’ from them to help them migrate to the United States illegally, but failed to do so.[14]
Illustration 4: Crown v Roda[15]
Where the accused bought a girl aged nine and gave her in marriage to his brother, it was held that he was not guilty of the offence of disposing of the girl as a slave.
Illustration 5: Chirag (1929) 30 Cr LJ 376 (Lah)
Where the accused, a brothel manager, obtained possession of a girl below 18 years of age, the presumption was that she would be used for prostitution.
Frequently Asked Questions (FAQs)
1. Why human trafficking is illegal?
Human trafficking has grown to become one of the largest international crime industries in the world. It is a heinous offence and a grave violation of human rights. “Human rights most relevant to trafficking are as follows:-
- Prohibition of discrimination of all kinds
- Right to life
- Right to liberty and security
- Right not to be submitted to slavery, servitude, forced labour or bonded labour
- Right not to be subjected to torture and/or cruel, inhuman, degrading treatment or punishment
- Right to be free from gendered violence
- Right to freedom of association
- Right to freedom of movement
- Right to the highest attainable standard of physical and mental health
- Right to just and favourable conditions of work
- Right to an adequate standard of living
- Right to social security
- The right of children to special protection”[16]
2. Where human trafficking is most common?
Globally, human trafficking is most common in Algeria, Venezuela, Sudan and South Sudan, Belarus, Russia, Syria, Yemen, Libya and Somalia. In India, it is most popular in West Bengal, Rajasthan, Sikkim, Tripura, Bihar, Punjab, Nagaland, Orissa, Kerala, Jharkhand, Lakshadweep, Daman & Diu, Andaman and Nicobar islands[17] etc.
3. Are human trafficking and slavery the same thing?
Although human trafficking can be termed as ‘modern-day slavery’ however the two are different. There are various reasons for which people are trafficked. Some of these include forced prostitution, forced labour, forced begging, forced criminality, domestic servitude, forced marriage, and forced organ removal. Slavery can be one of the reasons for human trafficking.
4. What’s human trafficking?
UNODC, as guardian of the United Nations Convention against Transnational Organized Crime (UNTOC) and the Protocols thereto, assists States in their efforts to implement the Protocol to Prevent, Suppress and Punish Trafficking in Persons (Trafficking in Persons Protocol).[18] Article 3, paragraph (a) of the Protocol to Prevent, Suppress and Punish Trafficking in Persons defines Trafficking in Persons as 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 the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.[19] 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.[20]
5. Who to report human trafficking?
In India, human trafficking can be reported by calling on the national helpline Childline in 1098. “One can inform the following authorities:-
- Airport police
- Railway authorities
- Police stations
- State Human Rights Commission
- District Collectorate officials.”[21]
Edited by – Sakshi Agarwal
Quality Check – Ankita Jha
Approved & Published by – Sakshi Raje
References
[1]K.D.Gaur, Textbook on Indian Penal Code, (5th edition, Universal Law Publication, 2015) at pg- 679.
[2]Venku v Mahalinga, 1888ILR 1 Mad 393.
[3]Supra note 1 at pg-681.
[4]P.P. v MaddilaMutayalu, (1918) 19 Cr LJ 965.
[5]Labour Trafficking, Retrieved on 13/08/18 from https://humantraffickinghotline.org/type-trafficking/labor-trafficking.
[6] Human Trafficking, Ministry of External Affairs. Retrieved on 04/08/18 from http://www.mea.gov.in/human-trafficking.htm.
[7]S.N. MISRA, Labour& Industrial Laws (28th ed., Central Law Publications, Allahabad, 2016) at pg- 1120.
[8] Office To Monitor And Combat Trafficking In Persons, 2015 Trafficking in Persons Report, U. S. Department of State. Retrieved on 04/08/18 from https://www.state.gov/j/tip/rls/tiprpt/countries/2015/243558.htm.
[9]Ibid.
[10]Ibid.
[11]Ibid.
[12] Trafficking in Persons and Smuggling of Migrants laws 2018. Retrieved on 03/08/18 from https://www.unodc.org/pakistan/en/trafficking-in-persons-and-smuggling-of-migrants-laws-2018.html.
[13] Cristina Liebolt, The Thai Government’s Response to Human Trafficking: Areas of Strength and Suggestions for Improvement (Part1),17, Thailand Journal of Law and Policy. Retrieved on 04/08/18 from http://thailawforum.com/articles/thailand-human-trafficking.html.
[14]Punjabi pop singer Daler Mehndi sentenced to two years in jail, released on bail, The Hindu, March, 16th, 2018. Retrieved on 04/08/18 from https://www.thehindu.com/news/national/daler-mehndi-convicted-in-human-trafficking-case/article23271467.ece.
[15] 1867 PRC (Cr) 19 (38).
[16]Human Rights and Human Trafficking, United Nations Human Rights Fact Sheet No. 26. Retrieved on 04/08/18 from https://www.ohchr.org/Documents/Publications/FS36_en.pdf.
[17] Data and Statistics, Human Trafficking in India. Retrieved on 04/08/18 from https://sites.google.com/a/uw.edu/human-trafficking/research-links/data-and-statistics.
[18] Human Trafficking. Retrieved on 04/08/18 from https://www.unodc.org/unodc/en/human-trafficking/what-is-human-trafficking.html.
[19]Ibid.
[20] Ibid.
[21]Ramya Kannan, Do you know: How to help trafficking victims, The Hindu, March, 23rd, 2015. Retrieved on 04/08/18 from https://www.thehindu.com/news/cities/chennai/do-you-know-how-to-help-trafficking-victims/article7021062.ece.
