Tag: #AntiTraffickingBill

Human Trafficking is the illegal transportation of human beings from one place to another against their will or by use of force or by luring them in under a misconception. It is aimed at the use of a class of persons for forced labour, sexual exploitation and many other activities that benefit in economic terms. It is considered a social problem as it violates the human rights granted to citizens of every nation, it also adds to global health problems, and the organized crime rate. The Act itself is of such heinous nature that it was called ‘Flesh Trade’¹. Victims of human trafficking may suffer for a longer duration of time. The Act itself puts a big question mark on the security of countries.

LAWS RELATED TO HUMAN TRAFFICKING

INDIAN CONSTITUTION

Article 23: Provides that trafficking in human beings, the begar and other forms of forced labour are debarred by the Indian Constitution under this Article and if someone violates this law, he/she shall be punishable by law. The only exception to this rule is that the state can impose obligatory service on its citizens without making any discrimination on grounds of race, caste, religion, class, or gender.

As per the case of People’s Union for Democratic Rights v. Union of India^2, the term forced labour was defined by the court as ‘the labour that one performs against his/her will or the job he/she is doing is not paying the minimum wage to the worker’. The state is bound to protect citizens from heinous offences like this by taking immediate and effective action against it and under Article 35 of the Indian Constitution, the Parliament has the authority to make laws that punish the offender of Article 23. Acts like the Suppression of Immoral Traffic in Women and Girls Act, 1956 and the Abolition of Bonded Labour System Act, 1956.

Article 24: It forbids children below the age of 14 years to be employed in any factory or mine or any other hazardous arrangement for employment. Whereas, employment in non-hazardous industries is permissible.

In pursuance to provide protection under this article, certain Acts were passed by the Government of India:

The Factories Act, 1948: First act to be passed after independence to define the minimum age limit for children who work in factories i.e., 14 years. Later, amended and provided the minimum age of work as 17 years at night.

The Mines Act, 1952: Forbids the employment of children below the age of 18 years in mines.

Bonded Labour System (Abolition) Act, 1976: This act provides for the protection of weaker sections of society economically and physically. Providing the punishment for those who are involved in acts of bonded labour. The government provides compensation to the victims of bonded labour and rehabilitation³.

The Child Labour (Prohibition and Regulation) Act, 1986: This act provides a detailed view of places where children are allowed to work and where not. This act provides a list of 13 places and 57 processes where children are not allowed to work. 

Child Labour (Prohibition and Regulation) Amendment Act, 2016: This act prohibits the employment of persons who have not completed the age of 14 years. Also, a complete ban on persons between the age of 14 and 18 years working in hazardous factories.

Child Labour (Prohibition and Protection) Amendment Rules, 2017: This provides an overview of prevention, protection, rescue, and rehabilitation of children and adolescent workers and also provides fixed working hours and other environment-friendly conditions for working.

IMMORAL TRAFFIC (PREVENTION) ACT, 1956

Section 3: Provides punishment to a person responsible for having a brothel or renting someone a place to be used as a brothel.

Section 4: Punishment for those who are above the age of 18 years and living on the allowances that come through someone being a prostitute.

Section 5: Punishing those who are involved in inciting a person for the sake of prostitution.

Section 6: It punishes the one who detains another person with or without their consent to any brothel or any place that is for prostitution with having an intention that the person who is detained is to have sexual intercourse with any person who is supposedly the spouse of the detained person.

Section 7: Any person who carries out prostitution or the other person with whom the prostitution is carried out is in the proximity of public places including hospitals, clinics, hostels, education institutes, or in any other area i.e., mentioned in provisions of this act is punishable with a term of imprisonment of 3 months.  

Section 8: Luring someone for the purpose of prostitution in first conviction punishable with imprisonment of 6 months and a fine up to Rs. 500. In case of second conviction imprisonment of a year inclusive of fine of Rs. 500.

Section 18: Magistrate has the power to order the immediate closing of a location used as a brothel and located within 200 Meters radar to any public place. The owner is only given 7 days to evict from such a place.

Section 20: Magistrate has the power to order any person who is in the profession of prostitution and residing in any area within the jurisdiction of the concerned Magistrate to be present before the court and show cause why he should be allowed to continue to live in that area.

Section 21: State government may direct and establish enough protective homes and corrective institutions and their maintenance as mentioned under this act. If the procedure is not followed as mentioned in the act, may be liable for punishment.

Section 22A: If the State government believes that cases related to offences mentioned in this act should be decided through speedy trial, it may along with consultation of the state High Court may establish more courts for Judicial Magistrate First Class or Metropolitan Magistrate in any such area.

Section 22B: Irrespective of anything that is mentioned in CrPC state government has authority to direct the trial of any offence mentioned under this act shall be done in a summary way by the magistrate.

Supreme Court passed an order in the case of Gaurav Jain v. Union of India³ that a committee must be constituted for an in-depth study of problems faced by prostitutes, child prostitution, and children of prostitutes and help them through suitable schemes that help in their rehabilitation in society.

INDIAN PENAL CODE, 1860

Section 360: Whosoever he/she may take any person beyond the premises of India without his consent or any other person who is authorized to give consent on behalf of that person is called an offence of kidnapping a person from India.

Section 361: Whoever lures or takes a minor i.e., under the age of 16 years for males and under the age of 18 years for females or any other person who is incapable of giving his consent is stated as kidnap a person from the custody of his lawful guardianship.

Section 362: Any person who got trafficked is also a victim of abduction as the person was forced to move from a place of his/her choice.

Section 363A: Prescribes the punishment for those who kidnap and cripple a person of minor age for purpose of begging.

Section 366A: Provides punishment for any person who entices any minor girl to move from one place to any other place where she may be forced to have sexual intercourse with another person.

Section 370: Punishment for the persons who are involved in the trafficking of human beings and in any other acts related to human trafficking.

Section 372: If any person who sells disposes of, or lets her be hired for the purpose of prostitution any person who is below the age of 18 years shall be liable for imprisonment for up to 10 years with a fine.

Section 373: If any person buys, obtains, or hires any person who is below the age of 18 years shall be liable for imprisonment for up to 10 years with a fine.

GOVERNMENT’S ATTEMPT

The Ministry of Home Affairs of India has introduced a scheme ‘Strengthening Law Enforcement Response in India Against Trafficking’ under the scheme 330 Anti Human Trafficking Units will be established throughout the country and training would be given to up to 10,000 police officers. Funds as the first instalment for the same were released by the government in the year 2010-2011 to all state governments. Around 85 units have already been established all over India.

Ministry of Women and Child Development provides a scheme called ‘Ujjawala’ that provides for measures to be taken for preventing human trafficking, rescue, and rehabilitation of the victims. With the help of funds granted for scheme 101 centres that provide for rehabilitation and can be home to 4056 victims.⁴

CONCLUSION

Supreme Court claimed that when a child is given in adoption, he/she must be treated well and great care must be taken especially in cases of inter-country adoption so that the child must have moral security and must not end up being a product of sale and purchase for the foreign parents⁵. Even after the implementation of many schemes by the government of India still records more than 5,000 registered cases of human trafficking for a year and India comes under Tier 2 in the index of human trafficking meaning a moderate level of crime. While some people do not even register FIR for the offence due to lower rates of successful conviction in the cases.

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CITATIONS

1. Vishal Jeet v. Union of India 1990 AIR 1412.
2. 1982 3 SCC 235.
3. 1997 8 SCC 114.
4. Bandhua Mukti Morcha v. Union of India, 1984 AIR 802.
5. Laxmi Kant Pandey v. Union of India, 1984 2 SCC 244.

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This article is written by Simran Gulia currently pursuing a BA LLB from Maharaja Agrasen Institute of Management Studies.

INTRODUCTION

Human trafficking is the type of modern-day slavery in which a person is sold or used forcefully for the point of labor or commercial sex act. This is all that happens to intend to earn money. Human trafficking is not just a heinous crime against society but is a sin for our society. It has no boundaries for anyone irrespective of sex, gender, caste, or race anyone can be a victim of human trafficking but the most vulnerable ones are women and children. Children being innocent and getting easily influenced by others became victims of sexual acts. Due to the overpopulation and lack of job opportunities, many women from poor families are forced to get indulged in this profession and in some cases, a close family member becomes the hoes and sells them for such work.

According to the survey of the United Nations Office for drugs and crime [UNODC], it was found that the victim of human trafficking were 51% women, 28% children, and 21% men. Majorly women were abused by sexual violence which is 51%, 28% for children, and 21% for men. There are 43% of victims who are domestically within the national borders have been trafficked, it is shocking to know that the traffickers are not only men but it also constitutes 37% of women and 63% of men.

Some articles in the constitution are related to human trafficking.

ARTICLE 23
Article 23 talks about the prohibition of human trafficking and forced labor. Forced labor means less than minimum wage is paid. Any trafficking in human beings and beggars is prohibited and punishable in accordance with the law. In this article, the state is not prevented from commanding compulsory services for public purposes. The state shall not discriminate based on sex, color, caste, race, or any other. This article not only protects the state but also private citizens.¹

ARTICLE 21
Article 21 is a fundamental right under part 3 of the Indian constitution, which talks about the right to life and personal liberties. It is one of the most essential articles in the Indian constitution. The supreme court of India mentioned it as the ‘heart of fundamental rights ‘. It states that no person shall be deprived of life and liberty except as per the procedure established by law. Everyone is entitled to live with full dignity by birth.²

ARTICLE 51 A [E]
Article 51 A [e] is a fundamental duty to promote Peace, Harmony, and a sense of unity amongst the people of India cut across linguistic, religious, and regional basis, to repudiate practices that can be insulting to women.³

LAWS RELATED TO HUMAN TRAFFICKING

INDIAN PENAL CODE, 1860

• SECTION 366A
  If any person induces any minor to go with him to any other place with the intention of seducing her or doing illicit activities he or she will be punishable with the imprisonment of 10 years or fine or both.⁴

• SECTION 366B
  Whoever imports a girl from any other country under the age twenty one with the intent to force or seduce her for intercourse with another person then, a person can be liable for imprisonment of 10 years and a fine can also be imposed.⁵

• SECTION 374
  This section deals with unlawfully forcing someone to labor against their will or desire. Such a person can be punished with imprisonment which can be extended to 1 year or fine or both.⁶

• SECTION 370
  Whomever imports, exports, removes, buys, sells, or disposes of any person as a slave, or accepts, receives, or detains any person as a slave against his will, will be punished by imprisonment of either kind for a duration up to seven years, as well as a fine.⁷

THE IMMORAL TRAFFIC [PREVENTION] ACT, 1956

This act was passed by the parliament of India in 1956 and the main objective or purpose of this act is to prevent commercial sex or immoral traffic among women and girls. This act covers the entire country. This act defines a brothel as a “house or any portion of the house, room or any portion of any room, conveyance or portion of any conveyance, and place or portion of any place.” And prostitution is “the sexual exploitation or abuse of persons for commercial purposes or consideration in money or any other kind.” In this act, if any person runs a brothel or aid in such activities then he or she will be punishable with imprisonment for one year which can be extended to 3 years, and a fine of rupees 2000 can also be imposed. If any tenant knowing allows them to use the property for such use then he or she can be imprisoned for two years and a fine of rupees 2000 can also be imposed on them.

THE ANTI TRAFFICKING BILL, 2021

This bill focuses on the prevention of human trafficking, providing rehabilitation cure compensation to the victims, and providing stringent punishments for the traffickers. The early bill of 2018 was never introduced in the Lok Sabha. The 2021 bill is different from the previous bill as it also extends outside India. In this bill, the national investigation agency will also be set up. This will also include transgenders along with women and children in the definition of a victim. The central government will also set up a national anti-trafficking committee and many committees will be set up at state and district levels for the better implementation of rules and regulations.

CASE LAWS

PEOPLE’S UNION FOR DEMOCRATIC RIGHTS VS UNION OF INDIA
In this case, the people’s union of democratic rights filed a writ petition before the supreme court of India under Article 32 of the Indian constitution for the violation of fundamental rights and certain rights for laborers.⁸ People union of democratic rights is an organization set up to make a report on the exploitation of living conditions of laborers under contractors. In this case, the court defined forced labor under article 23, forced labor basically means employing labor and providing them wages which is less than the minimum wage rate. In this case, the court held that forced labor is a violation of the fundamental right of article 23 and the person can file a writ petition under Article 32 for the violation of their fundamental rights.⁹

LAXMI KANT PANDEY VS UNION OF INDIA
In this case, a writ petition was filed by Laxmi Kant Pandey regarding the malpractices in adopting children from foreign parents. This case brings to highlight the need for having rules and regulations regarding intercountry adoptions. The children go to another country and get neglected by their adopted parents, making a toxic and unhealthy environment for the children and resulting in sexual exploitation. To proving protection to the intercountry adopted children a comprehensive framework was formed. In this it was decided that the international adoptions would follow the regulations of the guardians and wards act, 1860 and the provisions of articles 15[3], 24, and 39 along with the united nations declaration on the rights of the child. It was made mandatory for foreigners to be sponsored by the licensed agencies of their country.¹⁰

GAURAV JAIN VS UNION OF INDIA
In this case, the public interest litigation was filed before the supreme court by the advocate to set up a distinct education system for the children of prostitutes and get them educated so that they didn’t have to live undesirable and the life full of misery. The court held that having separate schools for the children of prostitutes will isolate them and will be against the well-being of the children and society in general. The supreme court set up a committee consisting of advocates and social workers to look into the matter and find solutions. The court held that the prostitutes are not offenders but they are the victim of unfavorable socio-economic conditions and to set up juvenile homes for the rehabilitation and the safety of children.¹¹

CONCLUSION

There are many provisions related to human trafficking which are both domestically and globally recognized but still, there are numerous cases of human trafficking in our country. Human trafficking violated fundamental rights and constitutional rights and human rights of the people just for the sake of earning monetary benefits. Women and children are the victims of human trafficking people take advantage of the innocent behavior of the children and get them involved in sexual exploitation. In a country where there are fewer jobs for more people applying they are left unemployed and for the need for money women are forced to take up prostitution. Making laws and provisions is not enough this is an issue of great concern and it is needed to be seen from a socio-economic perspective also. The government should provide them with jobs so that they can live with dignity and comfort. Awareness related to human trafficking should be spread in schools among students. High-quality education should be promoted in government schools and colleges. This is a grave crime and needed to be lookup at in creating a safe and healthy environment for children and women to live in.

References:

1. The Indian constitution, 1950, art.23
2. The Indian constitution,1950, Art 21
3. Indian constitution, 1950,Art 51A[E]
4. Indian Penal Code, 1860, section 366 A
5. Indian penal code, 1860, Section 366B
6. Indian penal code, 1860 section 374
7. Indian penal code, 1860 section 370
8. Indian constitution,1950,Art.32
9. People union of democratic rights vs union of India, [1982 AIR 1473]
10. Laxmi Kant Pandey vs Union of India, [[1984 AIR 469]
11. Gaurav Jain vs Union of India, [{1997} 8 SCC 114]

This article is written by Prerna Pahwa, a student of Vivekananda Institute of Professional Studies, New Delhi.