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Human Trafficking Prevention Under Section 370 of IPC, 1860

Gross violations of human rights make “Human Trafficking” a serious global concern. Anti-trafficking laws in India are covered under a wide range of complex patchworks, ranging from Indian Penal Code, Immoral Traffic Prevention Act (ITPA) also known as PITA Act, 1986 to various social legislations. Article 23 of the Constitution of India prohibits trafficking in any form. It prohibits trafficking in human beings and beggar and other forms of forced labor making provisions for punishment of the contravention of such laws.

Indian Penal code has various other provisions dealing with the varied aspects of human trafficking such as;
• 363 A (Kidnapping or Maiming a minor for the purpose of begging);
• 366 A (procuring a minor girl for sexual exploitation);
• 366 B (importation of a girl from a foreign country for sexual exploitation);
• Section 3 and 18 of the Immoral Trafficking (Prevention) Act, 1956 had provisions for punishment for taking and procuring of persons for the sake of prostitution;
• 370 (buying or selling of any person as a slave).

Section 370 of IPC, 1860

Justice Verma Committee was set up after the after math of the tragic Delhi gang-rape incident. There came Criminal Amendment Act, 2013, major changes were made in relation to trafficking made to section 370 of IPC and the newly added section 370 A. Section 370 of IPC has been totally reframed by the amendment Act. The concept of human trafficking has been added in the newly amended Act. Amendment of 2013. - Vide the Criminal Law (Amendment) Act 2013 (Act 13 of 2013), the entire section has been changed so as to enlarge the scope of the offence and include within its purview not just the mischief of slavery, but trafficking in general - of minors as also adults, and also forced or bonded labour, prostitution, organ transplantation and to some extent child-marriages.

The Previous Section 370 dealt with buying or disposing of any person as a slave and the section provided “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. This position of the section stood prior to section 8 of Criminal Law Amendment Act, 2013 (w.e.f. 3.2.2013).

The New Section 370 provides “Now the section 370 provides that (1) whoever, for the purpose of exploitation, (a) recruits, (b) transports, (c) harbors, (d) transfers, or (e) receives, a person or persons, by (i) using threats, or (ii) using force, or any other form of coercion, or (iii) by abduction, or (iv) by practicing fraud, or deception, or by abuse of power, or (vi) by inducement, including the giving or receiving of payments or benefits, in order to achieve the consent of any person having control over the person recruited, transported, harbored, transferred or received, commits the offence of trafficking[1].

Explanation further provides that the expression of slavery or practices similar to slavery, servitude, or the forced labour or services, slavery or practices similar to slavery, servitude, or the forced removal of organs. The section by way of explanation further makes it clear that the consent of the victim is immaterial in the determination of the offence of trafficking.

Punishment- The punishment for the contravention of the provisions of the Section are provided in Section 370(2), 370(3), 370(4), 370(5),370(6), 370(7) of IPC. These punishments cover all the aspects of trafficking including punishments for its aggravated forms etc.

The detailed provisions regarding punishment for trafficking provided in the criminal amendment Act, 2013 in relation to section 370 are:-
1. Trafficking of persons[2] - 7 to 10 years + Fine
2. Trafficking of more than one person[3] - 10 years to life + Fine
3. Trafficking of minor [4]- 10 years to life + Fine
4. Trafficking of more than 1 minor [5]- 14 years to life + Fine
5. Persons convicted of the offence of trafficking of minor in more than one occasion[6] - Imprisonment of Natural-life + Fine
6. Public Servant or police officer involved in trafficking of minor[7] -Imprisonment for Natural -Life + Fine.

Wider Ambit of Exploitation In Section 370

It is seen that while the older section dealt only with the aspect of slavery the new section widened its horizons to take into several other kinds of exploitation into its ambit. The term “exploitation” has much wider arena in section 370. It includes various aspects as stated in 370(1). The purpose of exploitation is at the core of the offence of trafficking. In addition to this section, the explanation further added also aides to the meaning of exploitation. Exploitation further includes;

• Prostitution- which is stated as a kind of exploitation. In Bhagubhai Patel V. State of Gujarat, the question arose before the court was whether a customer at a brothel is covered under Section 370 of Indian Penal Code. The learned judge with a note of caution stated that a customer is also included in section 370. It was further stated that section 370, which deals with the offence of Trafficking of Persons, the term "exploitation" includes "prostitution" itself. This, in essence, means that "prostitution" will now be interpreted as exploitation. This problematic formulation has now been incorporated into the recently passed Ordinance. The concern was raised is that By introducing the language of prostitution itself as exploitation, the amendment endangers sex workers instead of protecting them from sexual exploitation as there is no aspect of consent. legislative framework that criminalizes prostitution as exploitation, drives the practice underground and renders the already vulnerable sex worker more vulnerable to violence, exposure to HIV and deepens the lack of legal remedy to redress violence.

• Whether consent a mandatory factor for determination of an offence -Explanation 2 of section 370 states that the consent of the victim of immaterial in the determination of the offence of trafficking. It ousts the possibility of an accused taking the defence of consent of the victim to any act of physical exploitation or another form of sexual exploitation, slavery or practices similar to slavery, servitude, or the forced removal of organs. Pursuant to an application for clarification it was stated that Section 370 of the Indian Penal Code will have no application in a case wherein the sex workers engaged in prostitution of their own volition, and not pursuant to any inducement, force or coercion. This would be a question of fact and a subject matter of investigation. It is for the Investigating officer to consider, whether the sex workers had engaged themselves in prostitution of their own volition or they were victims of sexual exploitation as explained by section 370 of the Indian Penal Code.

• Other forms of sexual exploitation - Section 370 of IPC criminalises people in sex work since it does not differentiate between "coercive prostitution" and prostitution; nor does it talk about the "exploitation of prostitution”.

• Forced Labour or Services and slavery- Section 370 covers all the aspects of forced labour under the ambit of exploitation and also all aggravated forms of slavery.

Section 370 penalises buying or selling etc. or disposing of any person as a slave. It says that 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 simple or rigorous imprisonment for a term extending up to seven years, and shall also be liable to fine.

[1] Sec. 370 (1), IPC,1860.
[2] Sec. 370 (2) , IPC, 1860
[3] Sec 370 (3), IPC
[4] Sec 370 (4), IPC
[5] Sec 370 (5), IPC
[6] Sec 370 (6), IPC
[7] Sec 370 (7), IPC

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