Modern Era Slavery: Menace Of Human Trafficking In India
"Those who have the privilege to know to have the duty to act."- Albert Einstein
Human trafficking is one of the most talked about issues in Indian society. The practice is nothing but slavery in disguise. Every household somehow or the other witness the practice of subjugation in form of bonded labour or exploitation of human beings. India's rank in the Trafficking in Person Report:2021 among "Tier:2" nations is a reflection of the lack of measures taken to fully meet the minimum standards for the eradication of trafficking in India.
The Government of India Act, 1935 gave the definition of trafficking as:
"Whoever, for the purpose of exploitation, recruits, transports, harbors, transfers, or receives, a person or persons, by using threats, or using force, or any other form of coercion, or by abduction, or by practicing fraud, or deception, or by abuse of power, or 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 offense of trafficking.
The expression "exploitation" shall include any act of physical exploitation or any form of sexual exploitation, slavery, or practices similar to slavery, or servitude. The consent of the victim is immaterial in the determination of the offence of trafficking" which is a reflection of the deep-rooted and ancient nature of the social evil.
In India, the definition of human trafficking in pragmatism was also given as early as 1953, in the case of Raj Bahadur v. State of W. B. as "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."
It is the third largest organized crime after drugs and the arms trade across the globe. whereby leading to heinous violation of human rights that occurs all over the world. It's basically, a form of modern-day slavery, a violation of human rights that is both a crime against the individual and a crime against the state.
As per article 3, paragraph (a) of the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons (Palermo Protocol, 2000), trafficking is defined 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.
Exploitation may include the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude, or the subtraction of organs. 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.In accordance with the Crime in India Report, 2020 released by National Crime Record Bureau (NCRB), A total of 1,714 cases of Human Trafficking were registered in 2020 as compared to 2,208 cases in the year 2019, showing a decrease of 22.4%. A total of 4,709 victims have been reported to be trafficked of which 2,222 children and 2,487 adults were trafficked. Apart from this, 4,680 victims have been rescued from the clutches of traffickers. A total of 4,966 persons were arrested in 1,714 cases of trafficking.
The Hon'ble Apex court in Vishal Jeet v. Union of India very rightly observed "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"
Causes and Modes
Poverty, societal or cultural practices, and migration are the primary causes of human trafficking. Other factors include the permeable nature of borders, corrupt government officials, involvement of transnational organized crime groups or networks, and immigration and law enforcement agents' weak capacity or willingness to police borders. It can be said that Poverty, globalization, social structures, natural calamities, and government are all highly influential on the supply side of bondage.
Trafficking, particularly of women and children, is influenced by a number of circumstances. There are two types of causes that contribute to the trafficking of women and children: push and pull forces. The push factors include poor socio-economic conditions of a huge number of families, poverty, and frequent, practically yearly natural calamities such as floods, leading to the virtual destitution of some people.
Lack of education, skill, and income opportunities for women (and their family members) in rural areas, lack of awareness about human traffickers' activities, pressure to collect money for dowries, which leads to sending daughters to distant places for work, dysfunctional family life, domestic violence against women, low status of girl children, etc.
According to the case studies, extreme poverty and other forms of hardship not only encourage people to fall into the hands of traffickers, but they also provide a motivation for some to do so. Prostitutes who have no other choice but to stay in the exploitative atmosphere often form close bonds with the traffickers and follow in their ways.
The pull factor includes the lucrative job offers in big cities, easy money, the promise of better pay and a luxurious lifestyle by trafficking vendors and agents, demand for teenage women for marriage in other regions, demand for low-paid and underage sweatshop labour, growing demand for young children for adoption, rise in demand for women in the rapidly expanding sex industry.
Legal Framework Against Human Trafficking In India
Indian laws have criminalized sex trafficking and some forms of labour trafficking. Section 370 of the Indian Penal Code (IPC) criminalized trafficking offenses that tangled exploitation that involved any act of physical exploitation or any form of sexual exploitation, slavery, or practices parallel to slavery, and servitude.
The law did not clearly mention labor trafficking. The said Section prescribes penalties extending from seven to 10 years imprisonment and a fine for offenses concerning an adult victim, and 10 years to life imprisonment and a fine for those concerning a child victim; these penalties were sufficiently stringent and, with respect to sex trafficking, corresponding with those prescribed for other serious crimes, such as kidnapping. However sec.372 and 373 of IPC criminalize the exploitation of children through prostitution without requiring a demonstration of such means, thus addressing this gap.
These sections prescribe penalties of up to 10 years imprisonment and a fine, which is also sufficiently stringent and proportionate with those prescribed for other serious crimes, such as kidnapping. Section 374 punishes individuals who compel other individuals to labor against their will with imprisonment up to one year or fine or both. In addition to the above-mentioned sections, there are some other provisions in the Indian Penal Code, 1860 which deal with the menace of human trafficking like Section 366(B), which deals with the importation of girls under the age of 21 from foreign countries with an intention to force or seduce her to have illicit intercourse, Section 366(A), which prohibits the inducement of any minor girl under the age of 18 to go from any place or to do any act that such girl may be forced or seduced to have illicit intercourse with any other person. Furthermore, the supreme law of the land, the Indian constitution in some of its articles deals with a heinous crimes and its preventive measures.
These articles are: Article 23, which specifically prohibits human trafficking, beggar, and any other similar practice, Article 39 which states that females and children should not be forced by monetary necessity to enter unsuitable occupations; and that children and youth should be protected against exploitation, Article 39 -A, which emphasizes on maintenance of a legal system where people are not denied justice because of their financial conditions or other disabilities. It is noteworthy, that Articles 14, 15, 21, 22, and 24 of the Constitution also comprehend certain provisions relating to human trafficking.
Besides the Constitution of India, the Government prosecutes sex trafficking crimes under other legislations like the Protection of Children from Sexual Offenses Act, 2012 (POCSO), which deals specifically with the rights of children and trafficking offenses against them as The Indian Penal Code, 1860 does not cover all kinds of sensual crimes against children. Its main agenda is to strengthen provisions for the protection of children from sexual abuse and exploitation.
The Immoral Traffic Prevention Act, 1956 (ITPA), criminalizes various offenses relating to commercial sexual exploitation. Section 5 of the Act prescribes punishment for any person who is involved in any kind of inducement or procurement of another person for the sake of prostitution.
Section 4 provides for punishing any person above the age of 18 who is earning of prostitution of some other person. Section 6 of the Act provides punishment for a person who, with or without consent, detains another person in a brothel or other prostitution establishment with the goal that such detained person has sexual relations with anyone who is not his or her spouse.
Moreover, Section 3 of the Act mentions about the penalties of a person who operates a brothel or allows a brothel to operate on his property, or who is in control of a brothel, either directly or through a renter, occupier, or other person. Apart from the aforementioned sections, Sections 7, 8, 18, 20, 21, 22 A and 22 B deals explicitly with the crimes related to prostitution, that paves way for the traffickers.
Transplantation of Human Organs and Tissues Act, 1994, which states in Section 11 about the prohibition of elimination or transplantation of human organs for any purpose other than therapeutic purposes. Section 19 of the Act mentions about commercial trading in human organs.
It also illuminates that it penalizes those who search for eager people or offer to supply organs and such traffickers and identical practitioners shall be punished with imprisonment for a tenure 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 range to one crore rupees. Under the ambit of this Act the offenders may include traffickers, procurers, agents, intermediaries, hospital or nursing staff and medical labs and their technicians tangled in the unlawful transplant techniques.
Criminal Procedure Code, 1973 states, that the responsibility for compensating victims of human trafficking is split between the Central government and individual states. Section 357 and Section 357-A CrPC are substantial to be held responsible for this. When it comes to the penalty itself, a fine or a sentence the fine can be passed on to the victim under Section 357 CrPC.
Even if that is not the case, Section 357-A CrPC provides for a fund - a State fund - that can be used to compensate victims of any crime (not just human trafficking) who have suffered loss or injury. It does not, however, specify the type or extent of such compensation.
Conclusion
The menace of human trafficking has contaminated Indian society. It jeopardizes the dignity and well-being of trafficking victims while also violating their human rights grossly. There are a number of laws prevalent in India but we have to give a second thought when it comes to their practical implementation. In many parts of rural as well as urban India where people are not educated, they don't even know about the laws made for their safety and protection.
There is a huge gap between the people for whom the laws are made and the legislations made for them. In order to combat trafficking and thus shield the human rights of the vulnerable section of society, the strong political will of the government along with the impactful acts of privileged and educated people is vital in implementing the anti-trafficking laws.
Technical assistance and cooperation need to be strengthened to help all countries protect victims and bring criminals to justice. The Government should take more steps to encourage gender sensitization and education on the equal and respectful relationship between both genders, hence preventing violence against women also.
There should be clarity on the central and state government directives for the operation of protection plans and compensation schemes for all the trafficking victims and to ensure that states provide release certificates, compensations, and no-cash benefits to all the victims as soon as possible.
References:
Human trafficking is one of the most talked about issues in Indian society. The practice is nothing but slavery in disguise. Every household somehow or the other witness the practice of subjugation in form of bonded labour or exploitation of human beings. India's rank in the Trafficking in Person Report:2021 among "Tier:2" nations is a reflection of the lack of measures taken to fully meet the minimum standards for the eradication of trafficking in India.
The Government of India Act, 1935 gave the definition of trafficking as:
"Whoever, for the purpose of exploitation, recruits, transports, harbors, transfers, or receives, a person or persons, by using threats, or using force, or any other form of coercion, or by abduction, or by practicing fraud, or deception, or by abuse of power, or 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 offense of trafficking.
The expression "exploitation" shall include any act of physical exploitation or any form of sexual exploitation, slavery, or practices similar to slavery, or servitude. The consent of the victim is immaterial in the determination of the offence of trafficking" which is a reflection of the deep-rooted and ancient nature of the social evil.
In India, the definition of human trafficking in pragmatism was also given as early as 1953, in the case of Raj Bahadur v. State of W. B. as "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."
It is the third largest organized crime after drugs and the arms trade across the globe. whereby leading to heinous violation of human rights that occurs all over the world. It's basically, a form of modern-day slavery, a violation of human rights that is both a crime against the individual and a crime against the state.
As per article 3, paragraph (a) of the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons (Palermo Protocol, 2000), trafficking is defined 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.
Exploitation may include the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude, or the subtraction of organs. 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.In accordance with the Crime in India Report, 2020 released by National Crime Record Bureau (NCRB), A total of 1,714 cases of Human Trafficking were registered in 2020 as compared to 2,208 cases in the year 2019, showing a decrease of 22.4%. A total of 4,709 victims have been reported to be trafficked of which 2,222 children and 2,487 adults were trafficked. Apart from this, 4,680 victims have been rescued from the clutches of traffickers. A total of 4,966 persons were arrested in 1,714 cases of trafficking.
The Hon'ble Apex court in Vishal Jeet v. Union of India very rightly observed "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"
Causes and Modes
Poverty, societal or cultural practices, and migration are the primary causes of human trafficking. Other factors include the permeable nature of borders, corrupt government officials, involvement of transnational organized crime groups or networks, and immigration and law enforcement agents' weak capacity or willingness to police borders. It can be said that Poverty, globalization, social structures, natural calamities, and government are all highly influential on the supply side of bondage.
Trafficking, particularly of women and children, is influenced by a number of circumstances. There are two types of causes that contribute to the trafficking of women and children: push and pull forces. The push factors include poor socio-economic conditions of a huge number of families, poverty, and frequent, practically yearly natural calamities such as floods, leading to the virtual destitution of some people.
Lack of education, skill, and income opportunities for women (and their family members) in rural areas, lack of awareness about human traffickers' activities, pressure to collect money for dowries, which leads to sending daughters to distant places for work, dysfunctional family life, domestic violence against women, low status of girl children, etc.
According to the case studies, extreme poverty and other forms of hardship not only encourage people to fall into the hands of traffickers, but they also provide a motivation for some to do so. Prostitutes who have no other choice but to stay in the exploitative atmosphere often form close bonds with the traffickers and follow in their ways.
The pull factor includes the lucrative job offers in big cities, easy money, the promise of better pay and a luxurious lifestyle by trafficking vendors and agents, demand for teenage women for marriage in other regions, demand for low-paid and underage sweatshop labour, growing demand for young children for adoption, rise in demand for women in the rapidly expanding sex industry.
Legal Framework Against Human Trafficking In India
Indian laws have criminalized sex trafficking and some forms of labour trafficking. Section 370 of the Indian Penal Code (IPC) criminalized trafficking offenses that tangled exploitation that involved any act of physical exploitation or any form of sexual exploitation, slavery, or practices parallel to slavery, and servitude.
The law did not clearly mention labor trafficking. The said Section prescribes penalties extending from seven to 10 years imprisonment and a fine for offenses concerning an adult victim, and 10 years to life imprisonment and a fine for those concerning a child victim; these penalties were sufficiently stringent and, with respect to sex trafficking, corresponding with those prescribed for other serious crimes, such as kidnapping. However sec.372 and 373 of IPC criminalize the exploitation of children through prostitution without requiring a demonstration of such means, thus addressing this gap.
These sections prescribe penalties of up to 10 years imprisonment and a fine, which is also sufficiently stringent and proportionate with those prescribed for other serious crimes, such as kidnapping. Section 374 punishes individuals who compel other individuals to labor against their will with imprisonment up to one year or fine or both. In addition to the above-mentioned sections, there are some other provisions in the Indian Penal Code, 1860 which deal with the menace of human trafficking like Section 366(B), which deals with the importation of girls under the age of 21 from foreign countries with an intention to force or seduce her to have illicit intercourse, Section 366(A), which prohibits the inducement of any minor girl under the age of 18 to go from any place or to do any act that such girl may be forced or seduced to have illicit intercourse with any other person. Furthermore, the supreme law of the land, the Indian constitution in some of its articles deals with a heinous crimes and its preventive measures.
These articles are: Article 23, which specifically prohibits human trafficking, beggar, and any other similar practice, Article 39 which states that females and children should not be forced by monetary necessity to enter unsuitable occupations; and that children and youth should be protected against exploitation, Article 39 -A, which emphasizes on maintenance of a legal system where people are not denied justice because of their financial conditions or other disabilities. It is noteworthy, that Articles 14, 15, 21, 22, and 24 of the Constitution also comprehend certain provisions relating to human trafficking.
Besides the Constitution of India, the Government prosecutes sex trafficking crimes under other legislations like the Protection of Children from Sexual Offenses Act, 2012 (POCSO), which deals specifically with the rights of children and trafficking offenses against them as The Indian Penal Code, 1860 does not cover all kinds of sensual crimes against children. Its main agenda is to strengthen provisions for the protection of children from sexual abuse and exploitation.
The Immoral Traffic Prevention Act, 1956 (ITPA), criminalizes various offenses relating to commercial sexual exploitation. Section 5 of the Act prescribes punishment for any person who is involved in any kind of inducement or procurement of another person for the sake of prostitution.
Section 4 provides for punishing any person above the age of 18 who is earning of prostitution of some other person. Section 6 of the Act provides punishment for a person who, with or without consent, detains another person in a brothel or other prostitution establishment with the goal that such detained person has sexual relations with anyone who is not his or her spouse.
Moreover, Section 3 of the Act mentions about the penalties of a person who operates a brothel or allows a brothel to operate on his property, or who is in control of a brothel, either directly or through a renter, occupier, or other person. Apart from the aforementioned sections, Sections 7, 8, 18, 20, 21, 22 A and 22 B deals explicitly with the crimes related to prostitution, that paves way for the traffickers.
Transplantation of Human Organs and Tissues Act, 1994, which states in Section 11 about the prohibition of elimination or transplantation of human organs for any purpose other than therapeutic purposes. Section 19 of the Act mentions about commercial trading in human organs.
It also illuminates that it penalizes those who search for eager people or offer to supply organs and such traffickers and identical practitioners shall be punished with imprisonment for a tenure 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 range to one crore rupees. Under the ambit of this Act the offenders may include traffickers, procurers, agents, intermediaries, hospital or nursing staff and medical labs and their technicians tangled in the unlawful transplant techniques.
Criminal Procedure Code, 1973 states, that the responsibility for compensating victims of human trafficking is split between the Central government and individual states. Section 357 and Section 357-A CrPC are substantial to be held responsible for this. When it comes to the penalty itself, a fine or a sentence the fine can be passed on to the victim under Section 357 CrPC.
Even if that is not the case, Section 357-A CrPC provides for a fund - a State fund - that can be used to compensate victims of any crime (not just human trafficking) who have suffered loss or injury. It does not, however, specify the type or extent of such compensation.
Conclusion
The menace of human trafficking has contaminated Indian society. It jeopardizes the dignity and well-being of trafficking victims while also violating their human rights grossly. There are a number of laws prevalent in India but we have to give a second thought when it comes to their practical implementation. In many parts of rural as well as urban India where people are not educated, they don't even know about the laws made for their safety and protection.
There is a huge gap between the people for whom the laws are made and the legislations made for them. In order to combat trafficking and thus shield the human rights of the vulnerable section of society, the strong political will of the government along with the impactful acts of privileged and educated people is vital in implementing the anti-trafficking laws.
Technical assistance and cooperation need to be strengthened to help all countries protect victims and bring criminals to justice. The Government should take more steps to encourage gender sensitization and education on the equal and respectful relationship between both genders, hence preventing violence against women also.
There should be clarity on the central and state government directives for the operation of protection plans and compensation schemes for all the trafficking victims and to ensure that states provide release certificates, compensations, and no-cash benefits to all the victims as soon as possible.
References:
- Raj Bahadur v. State of W.B., 1953 Cal 129
- Trafficking in Person Report: 2021
- Arunima Bose, "Human Trafficking" (2020 SCC OnLine Blog LME 3 Human Trafficking) [https://www.scconline.com/blog/post/2020/09/20/humantrafficking/] accessed 25 June, 2021
- United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons (Palermo Protocol, 2000), article 3, paragraph (a)
- https://www.unodc.org/southasia/index.html
- https://www.unodc.org/southasia/en/topics/frontpage/2009/trafficking-in-persons-and-smuggling-of-migrants.html
- Crime in India Report, 2020 [released by National Crime Record Bureau]
- State of India's Environment in Figures 2020 [published by the Centre for Science and Environment]
- https://asiafoundation.org/publications/all
- Vimal Vidushy, Human trafficking In India: An analysis[http://www.shram.org/uploadFiles/20180319102934.pdf]
- Indian Penal Code, 1860 [s 370,372,373,374, 366(A), 366(B), 354, 354(A)(B) (C) (D)]
- PSA Pillai, Criminal Law 13th Edition
- The Constitution of India (Bare Act, 2018)
- Protection of Children from Sexual Offenses Act, 2012 (POCSO)
- Immoral Traffic Prevention Act, 1956 (ITPA) [ s 3, 4, 5, 6, 7, 8, 18, 20, 21, 22 (A)(B)]
- Bonded Labour System (Abolition) Act, 1976
- Child and Adolescent Labour (Prohibition and Regulation) Act, 1986
- Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989
- Transplantation of Human Organs and Tissues Act, 1994 [s 11, 19]
- Criminal Procedure Code, 1973 [ s 357, 357(A)]
- Vishal Jeet v. Union of India, AIR (1990) 3 SCC 318
- Swarnim Burman, Law Student Of Ajeenkya Dy Patil University, Pune
- Syed Zainul Hasan Rizvi, Law student of Unity PG & Law College Lucknow.
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