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Human trafficking laws in India

Almost 300 years ago, the Indian Slavery Act, 1843 was passed which outlawed transactions associated with slavery and anyone who would partake in the buying and selling of slaves would be penalized under the Indian Penal Code, 1860. This evil practice is still prevalent under the moniker of modern slavery or human trafficking.

Human trafficking like slavery is exploitation of humans for personal or financial gains. The victims are subjected to fraud or coercion for the purpose of commercial sex, debt bondage or involuntary labour.

Human Trafficking is defined by the United Nations Office for Drugs and Crime (UNODC) in the Trafficking Protocol as 'the recruitment, transport, transfer, harbouring or receipt of a person by such means as threat or use of force or other forms of coercion, abduction, fraud or deception for the purpose of exploitation.' The UNODC estimates that:
  • 51% of identified victims of trafficking are women, 28% children and 21% men
  • 72% people exploited in the sex industry are women
  • 63% of identified traffickers were men and 37% were women
  • 43% of victims are trafficked domestically within national borders
According to the UNODC, there are three core elements that constitute human trafficking, the act (what is done), the means (how it is done) and lastly, the purpose (why it is done). There is a common misconception that transportation of persons across borders is also an essential element to constitute human trafficking but transport within a country or even a community constitutes trafficking. However, transport across borders is essential for constituting human smuggling.

Types and sub-types of human trafficking

Human trafficking is mainly divided into three types namely sex trafficking, forced labour and domestic servitude.
  1. Sex trafficking

    It is exploitation of humans for commercial sex which includes prostitution, pornography, sex tourism etc. Sex trafficking is a market-driven criminal industry that is based on the principles of supply and demand. Worldwide, it is estimated that there are 4.5 million victims of sex trafficking. Victims of sex trafficking often face physical injuries, psychological trauma, venereal diseases like HIV/AIDS, and social ostracism as a result of the abuse and exploitation.
     
  2. Forced labour

    Forced labour or unfree labour is when people are forced to work or provide services, sexual or otherwise, against their will. This can be induced by threat of penalty, detention, violence or fraud or coercion. The fishing, textile, construction, mineral and agriculture industries are particularly laced with forced labourers. These labourers are often paid meagre to no wages. Forced labour is especially predominant in racially excluded groups like Dalits. International Labour Organization (ILO) has estimated that there are approximately 20.9 million victims trapped in forced labour.
     
  3. Domestic servitude

    Domestic servitude is when the freedom of domestic helpers like nannies, maids or live-in help is compromised to such an extent that it amounts to enslavement. The circumstances of domestic helpers already create a unique, unfavourable and vulnerable environment due to the lack of legal aid and isolating conditions that can be easily achieved in private homes. The perpetrator can further make it worse by creating a work environment wherein he can exploit the victim and exercise complete control over them. There are several methods that can be employed to wield such control.

    Firstly, the employer can confiscate the victim's identification papers and travel documents making them extremely vulnerable and dependent on the employer especially if the victim is an immigrant. Secondly, the perpetrator can also isolate the victim from friends and family by not allowing them to leave the house, this can be done by using threats and violence.

    The International Labour Organization (ILO) estimates that at least 67 million men and women work as domestic workers across the world and about 80% are women and girls.
     
  4. Other sub-types
    The other types of human trafficking include child labour, where the exploitation ranges from labour industries like agriculture and raw material extraction, commercial trade, prostitution to drug couriering. Cases of forced marriage can also amount to human trafficking. Another form of trafficking is organ trade, the trafficker usually executes this by employing one of the following three methods:
    • By coercing the victim into removing and selling their organs;
    • By obtaining the consent of the victim and falsely promising a sum of money in exchange; or
    • By removing and selling off the organs without the acknowledgement of the victim under the pretext of treatment for another illness.

Vulnerable persons

Although anyone of any race, gender, sex, class and creed can be a victim of human trafficking, there are certain sections of society that are more susceptible than others, which are set out below:
  1. Individuals below the poverty line and unemployed persons

    Traffickers tend to prey on people facing destitution by offering fake lucrative jobs or loaning money, making victims incur huge debts. Victims, with hopes of leading a better life and being able to provide for their families, accept these risky proposals.
     
  2. Immigrants

    Both, legal and illegal immigrants are more vulnerable to the deceptive and coercive tactics of traffickers due to language barriers and unfamiliarity to the host country. Traffickers further blackmail and establish control over undocumented immigrants by threatening to report them to the authorities.
     
  3. Children

    Children are considered easy targets for trafficking due to their inexperience, innocence and naivety. It is relatively easy to manipulate them with empty promises and lies.
     
  4. Runaway or homeless youth and youth facing problems at home

    Teenagers who face abuse and neglect at home are often subjected to the process of 'grooming', i.e. the perpetrator isolates the victim from their family and friends while collecting information on them and gaining their trust by building a relationship which is usually a romantic one. Once this has been accomplished, the perpetrator abuses the victim's trust and exploits them. The grooming process is easier to execute on runaway youth since in most cases they already do not have any kind of support system.
     
  5. Individuals with a history of trauma and abuse

    Persons who have faced violence or abuse are already emotionally wounded making them more susceptible to being preyed on by perpetrators due to low self-confidence and the feelings of unworthiness and powerlessness that they harbour.

D. Laws against human trafficking in India

There are different laws that deal with the different types of trafficking, which are listed below:
(i) Indian Penal Code, 1860
In India, human trafficking is primarily dealt with under the Indian Penal Code, 1860.

The important sections are as follows:

General Provisions
Section 347 - Any person who wrongfully confines any other person to extort from them or to constrain them to engage in illegal acts shall be punished with imprisonment of up to 3 years along with a fine.

Section 357 - Whoever uses assault or criminal force to wrongfully confine a person, shall be imprisoned for a term of up to one year or with a fine of up to rupees one thousand.

Section 363 - Whoever kidnaps a person from India or from lawful guardianship shall be punished with imprisonment of up to seven years and will also be liable to be fined.

Section 365 - Whoever kidnaps or abducts with intent secretly and wrongfully to confine a person, shall be punished with imprisonment of up to 7 years along with a fine.

Section 370 – This section defines the offence of trafficking as:
'Whoever, for the purpose of exploitation, (a) recruits, (b) transports, (c) harbours, (d) transfers, or (e) receives, a person or persons, by:
first.—using threats, or secondly.—using force, or any other form of coercion, or thirdly.—by abduction, or fourthly.—by practising fraud, or deception, or fifthly.—by abuse of power, or sixthly.— 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, harboured, transferred or received, commits the offence of trafficking.

According to this section, exploitation includes physical or sexual exploitation, slavery, servitude or forced removal of organs. The consent of the victim to any of these acts is immaterial. The punishment for this offence is imprisonment for a term which from seven years to ten years along with a fine, although when the offence involves the trafficking of more than one persons the punishment is imprisonment for a term of ten years which may extend to life imprisonment. According to this section, exploitation includes physical or sexual exploitation, slavery, servitude or forced removal of organs.

Section 506 – The punishment for criminal intimidation is imprisonment which may extend up to two years, or with fine or both.

Special provisions
Sex trafficking
Section 354 -A – Any man committing the following acts:
  1. physical contact and advances involving unwelcome and explicit sexual overtures; or
  2. a demand or request for sexual favours; or
  3. showing pornography against the will of a woman
shall be imprisoned for a term of up to three years or with a fine or both.
Section 376 – The punishment for rape is imprisonment for a term not less than ten years and extending up to life imprisonment, or with fine or both.

Forced marriage

Section 366 - Whoever kidnaps, abducts or induces a woman to compel her marriage shall be punished with imprisonment of up to ten years along with a fine.

Minors

Section 366-A – Procuration of a minor girl shall be punishable with imprisonment which may extend to ten years in addition to fine.

Section 366-B – Importation of girl (under the age of twenty-one years) from foreign country shall be punishable with imprisonment which may extend to ten years in addition to fine.

Section 370 (4) – Where the offence involves trafficking of one minor the punishment shall be imprisonment for not less than ten years extending up to life imprisonment and shall also be liable to fine.

Section 370 (5) - Where the offence involves trafficking if more than one minor the punishment shall be imprisonment for not less than ten years extending up to life imprisonment and shall also be liable to fine.
Section 370 (6) - If a person is convicted for trafficking of minor on more than one occasion, the punishment shall be life imprisonment and shall also be liable to fine.

Section 372 – Whoever sells minors for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, shall be punished with imprisonment extending up to ten years, and shall also be liable to fine.

Slavery
Section 371 – Habitual imports, exports, trafficking, buying, selling etc in slaves, shall be punished with imprisonment for life, or with imprisonment for a term not exceeding ten years, and shall also be liable to fine.

Section 374 – Unlawful compulsory labour against the will of the person shall be punished with imprisonment extending up to one year, or with fine, or both.

Aiding human trafficking

Section 368 – Whoever wrongfully conceals or keeps in confinement, kidnapped or abducted person shall be punished in the same manner as the kidnapper or abductor himself i.e. with imprisonment which may extend up to ten years along with fine.

Section 370-A (1) – Whoever engages a trafficked minor for sexual exploitation in any manner, shall be punished with imprisonment for a term which shall not be less than five years, but may extend to seven years, shall also be liable to fine.

Section 370-A (2) - Whoever engages a trafficked person for sexual exploitation in any manner, shall be punished with imprisonment for a term which shall not be less than three years, but which may extend to five years, and shall also be liable to fine.

Section 373 – Whoever buys minors for the purpose of prostitution shall be punished with imprisonment for a term which may extend to ten years, shall also be liable to fine.

(ii) Immoral traffic (prevention) act 1956

This Act deals with human trafficking for the purposes of sexual exploitation.

Section 3 – The punishment for keeping a brothel shall be imprisonment for a term of not less than one year and not more than three years along with fine which may extend to two thousand rupees.

Section 4 – The punishment for living on earnings of prostitution shall be imprisonment for a term of not less than one year and not more than three years, also with fine which may extend to two thousand rupees. If the earnings are from prostitution of a minor the punishment shall be, shall be punishable with imprisonment for a term of not less than seven years and not more than ten years.

Section 5 – Procuring, inducing or taking person for the sake of prostitution with or without their consent shall be punishable with imprisonment for a term of not less than three years and not more than seven years and also with fine which may extend to two thousand rupees and if it is committed against the will of any person, the punishment of imprisonment for a term of seven years shall extend to imprisonment for a term of fourteen years.

Section 6 – Detaining a person in premises where prostitution is carried on shall be punished with imprisonment for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine.

Apart from the above, this Act also provides punishments for offences like seducing or soliciting for purpose of prostitution, prostitution in or in the vicinity of public places and seduction of a person in custody.

(iii) The Constitution of India, 1949

Article 23 – Trafficking in humans and forced labour is prohibited and is punishable in accordance with law.
Article 24 – It states that any child under the age of fourteen years shall not work in any hazardous employment like factories or mines.

(iv) The Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018 [Lapsed]

The objective of this bill was to prevent trafficking of persons, providing protection and rehabilitation to the victims of trafficking and to prosecute offenders, it was passed in the Lok Sabha on July 26, 2018 and was listed for passage in Rajya Sabha but has lapsed.

There are other specific legislations enacted relating to trafficking in women and children like The Prohibition of Child Marriage Act, 2006, Bonded Labour System (Abolition) Act, 1976, Child Labour (Prohibition and Regulation) Act, 1986, and The Transplantation of Human Organs Act, 1994.

Landmark judgments against human trafficking in India

  1. People's Union for Democratic Rights v. Union of India, (1982) 3 SCC 235
    In this judgment, the honourable Supreme Court defined forced labour, while discussing the scope of Article 23 of the Constitution of India, stated:
    The word force must therefore be construed to include not only physical or legal force but also force arising from the compulsion of economic circumstances which leaves no choice of alternatives to a person in want and compels him to provide labour or service even though the remuneration received for it is less than the minimum wage.
     
  2. M C Mehta Vs State Of Tamil Nadu 1996 6 (SCC) 756
    In this Public Interest Litigation, the Supreme Court laid down measures that should be taken to support victims of child labour and their families. The Supreme Court stated:
    'We are of the view that 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; and the Inspectors, whose appointment is visualised by Section 17 to secure compliance with the provisions of the Act, should do this job.

    The Inspectors appointed under Section 17 would see that for each child employed in violation of the provisions of the Act, the employer concerned pays Rs 20,000 which sum could be deposited in a fund to be known as Child Labour Rehabilitation-cum-Welfare Fund.

    The liability of the employer would not cease even if he would desire to disengage the child presently employed. It would perhaps be appropriate to have such a fund district wise or area wise. The fund so generated shall form corpus whose income shall be used only for the child concerned. The quantum could be the income earned on the corpus deposited qua the child. To generate greater income, fund can be deposited in high-yielding scheme of any nationalised bank or other public body.
     
  3. Prerna v. State of Maharashtra: 2003 (2) Mah.L. J. 105
    In this judgement the Bombay High Court set seven guidelines that should be taken for the protection of child victims and directions to ensure rehabilitation of the rescued child
    1. No Magistrate can exercise jurisdiction over any person under 18 years of age whether that person is a juvenile in conflict with law or a child in need of care and protection, as defined by Sections 2(1) and 2(d) of the Juvenile Justice (Care and Protection of Children) Act, 2000. At the first possible instance, the Magistrates must take steps to ascertain the age of a person who seems to be under 18 years of age. When such a person is found to be under 18 years of age, the Magistrate must transfer the case to the Juvenile Justice Board if such person is a juvenile in conflict with law, or to the Child Welfare Committee if such a person is a child in need of care and protection.
       
    2. A Magistrate before whom persons rescued under the Immoral Traffic (Prevention) Act, 1956 or found soliciting in a public place are produced, should, under Section 17(2) of the said Act, have their ages ascertained the very first time they are produced before him. When such a person is found to be under 18 years of age, the Magistrate must transfer the case to the Juvenile Justice Board if such person is a Juvenile in conflict with law, or to the Child Welfare Committee if such person is a child in need of care and protection.
       
    3. Any juvenile rescued from a brothel under the Immoral Traffic (Prevention) Act, 1956 or found soliciting in a public place should only be released after an inquiry has been completed by the Probation Officer.
       
    4. The said juvenile should be released only to the care and custody of a parent/guardian after such parent/guardian has been found fit by the Child Welfare Committee to have the care and custody of the rescued juvenile.
       
    5. If the parent/guardian is found unfit to have the care and custody of the rescued juvenile, the procedure laid down under the Juvenile Justice (Care and Protection of Children) Act, 2000 should be followed for the rehabilitation of the rescued child.
       
    6. No advocate can appear before the Child Welfare Committee on behalf of a juvenile produced before the Child Welfare Committee after being rescued under the Immoral Traffic (Prevention) Act, 1956 or found soliciting in a public place. Only the parents/guardian of such juvenile should be permitted to make representations before the Child Welfare Committee through themselves or through an advocate appointed for such purpose.
       
    7. An advocate appearing for a pimp or brothel keeper is barred from appearing in the same case for the victims rescued under the Immoral Traffic (Prevention) Act, 1956.
       
  4. Bachpan Bachao Andolan Vs Union of India 2011 SCC (5) 1
    In this case, the solicitor general of India submitted that an officer who is responsible for the implementation of laws relating to children shall be appointment by each state government. It was held that no child shall be deprived of his fundamental rights guaranteed under Constitution of India and bring to child traffic and abuse.
     
  5. Budhadev Karmaskar v. State of West Bengal, (2011) 11 SCC 538
    In this judgment the Supreme Court appointed a panel to monitor and suggest rehabilitation scheme for trafficked sex workers and trafficked victims. While dismissing the appeal by the accused in a case of a brutal murder of a sex worker, the Supreme Court stated:
    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.
As already observed by us, 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. The schemes should mention in detail who will give the technical/vocational training and in what manner they can be rehabilitated and settled by offering them employment.'

Conclusion
Even to this day there is ambiguity and uncertainty in the minds of people about the concept of human trafficking. The government, the media and educational institutes should partake in creating awareness about it, it is especially important to educate the vulnerable section of the society.

Even though, in India there are several provisions against human trafficking, there is no one comprehensive and complete law which would deal with all types of human trafficking and the protection of victims.

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