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Legal Options/ Rights for the Victims of Trafficking
What Is Trafficking?
The Constitution of India
Trafficking is prohibited by the Indian Constitution. The right against exploitation is a Fundamental Right guaranteed by the Constitution of India under Article 23(1) which provides that “traffic in human beings and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law”. This right is enforceable against the state and private citizens.
The Indian Penal Code, 1860The relevant provisions under the Indian Penal Code are Section 293, 294, 317, 339, 340, 341, 342, 354, 359, 361, 362, 363, 365, 366, 370, 371, 372, 373, 375, 376, 496, 498, 506, 509 and 511. Of significance are section 366A, which makes the procuration of a minor girl (below the age of 18 years) from one part of India to another, punishable and section 366B, which makes the importation of a girl below the age of 21 years punishable. Section 374 allows for punishment for compelling any person to labour against their will.
The Suppression of Immoral Traffic in Women and Girls Act, 1956 (SITA)This Act was enacted under Article 35 of the Constitution with the object of inhibiting and abolishing trafficking in women and girls. It was also in pursuance of the UN’s Trafficking Convention, which India signed on 9 May 1950. The Act aimed to rescue exploited women and girls, to prevent the deterioration of public morals and stamp out the evil of prostitution that was rampant in various parts of the country.
The Immoral Traffic (Prevention) Act, 1956In 1986 SITA was drastically amended and renamed the Immoral Traffic (Prevention) Act, 1956. It is a special legislation that deals exclusively with trafficking. Offences under the act are:
o keeping a brothel or allowing a premises to be used as a brothel (S.3)
o living on the earnings of prostitution (S.4)
o procuring, inducing or taking persons for the sale of prostitution (S.5)
o detaining a person in a premises where prostitution is carried on (S.6)
o prostitution in and around the vicinity of public places (S.7)
o seducing or soliciting for the purpose of prostitution (S.8)
o seduction of a person in custody (S.9)
It also introduced several initiatives including setting-up of Protective Homes to provide protection and services to victims and educational and vocational training to at-risk groups. The act also provides for the appointment of special Police Officers assisted by women police to investigate trafficking offences, and for setting up of Special Courts.
The Probation of Offenders Act, 1958This Act is aimed at the offenders. Its important features are:
o The Act empowers the court to release certain offenders after admonition and place certain other offenders on probation for good conduct, and
o The Act puts a restriction on the court forbidding the imprisonment of any offender below the age of 21 years, who has not committed an offence punishable with imprisonment for life, unless the circumstances of the case or nature of the offence requires that the offender be punished.
The Indecent Representation of Women (Prohibition) Act, 1986This act puts a restriction on the publishing or sending by post of books and pamphlets containing indecent representation of women and prohibits all persons from getting involved directly or indirectly in the publication or exhibition of any advertisement containing indecent representations of women in any form.
The Child Marriage Restraint Act, 1929This Act sets down the legal age for marriage as 18 years for girls and 21 years for boy. The act empowers the court to issue injunctions prohibiting Child Marriage.
The Bonded Labour System (Abolition) Act, 1976This Act defines terms such as ‘advance’, ‘agreement’, ‘bonded debt’, ‘bonded labour’, ‘bonded labour system’ and provides for initiating appropriate action.
The Child Labour (Prohibition and Regulation) Act, 1976The Act prohibits the employment of children in the specific occupations set forth in Part A of the schedule of the Act. It lays down the conditions of work of the children, and as per the Act, no child can work for more than three hours, after which an interval of rest for at least one hour is stipulated.
The Transplantation of Human Organ Act, 1994The two-fold objectives of this act are:
o to provide for the regulation of removal, storage and transplantation of human organs for therapeutic purposes, and
o to prevent commercial dealings in human organs.
The Information Technology Act, 2000This Act extends throughout India and also has extra-territorial jurisdiction. Section 67 of this Act penalizes the publication or transmission of any material, in electronic form, which is lascivious or appeals to prurient interests or if its effect is such as to tend to deprave and corrupt persons who are likely to read, see or hear the matter contained or embodied therein.
The Juvenile Justice (Care and Protection of Children) Act, 2000This Act was passed in consonance with the Convention on the Rights of the Child. The focus of this act is to provide for the proper care, protection and treatment of the child’s developmental needs and adopts a child friendly approach. Section 29 empowers state governments to constitute Child Welfare Committees (CWC) for such areas as they may deem fit and it also outlines the powers of the committee and the procedures to be followed by it and section 31 gives these committees the ultimate authority to dispose of the cases. Under Section 34, a state government can establish and maintain children’s homes for the care and protection of children independently and u/s 39, the primary objective of the children’s home or shelter is the restoration and protection of childhood.
Goa Children’s Act, 2003This Act addresses several child rights in an integrated manner. The salient features of this act are:
o trafficking was given a legal definition for the first time in Indian jurisprudence.
o the definition of sexual assault was expanded to incorporate every type of sexual exploitation,
o the responsibility of ensuring the safety of children on hotel premises was assigned to the owner and the manager of the establishment,
o Photo studios are now required to periodically report to the police that they have not shot any obscene photographs of children.
• Shailaja Abraham, Going Nowhere: Trafficking of Women and Children in International Sex Trade (Volume 1), 1st Edition, 2001, Dominant Publishers and Distributors.
• Shailaja Abraham, Going Nowhere: Trafficking of Women and Children in International Sex Trade (Volume 2), 1st Edition, 2001, Dominant Publishers and Distributors.
• P.M. Nair, Trafficking in Women and children in India, 2005 Edition, Orient Longman.
• Report of the National Workshop to Review the Implementation of Laws and Policies Related to Trafficking: Towards an effective Rescue and Post Rescue Strategy. (Held on 27th and 28th February, 2004)
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