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.

This article is authored by Pankhuri Pankaj, a 3rd year student pursuing BA-LLB (Hons.) from Vivekananda Institute of Professional Studies, affiliated to GGSIPU. She is currently interning with Lexpeeps. This article summarises certain key provisions of “Human Trafficking”.

INTRODUCTION

Human Trafficking is the illegal practice or action of transporting people from one country to another or to a different area for the purposes of forced labour or sexual exploitation. According to the definition of Human Trafficking in the Trafficking in Persons Protocol, there are three constituent elements in trafficking: the Act which means ¨what is done¨ and it includes recruitment, transportation, transfer, harbouring or receipts of persons, the Means which means ¨how it is done¨ and it includes the threat or use of force, coercion, abduction, fraud, deception, abuse of powers or vulnerability, or giving payments or benefits to a person in control of the victim, and the Purpose which means ¨why it is done¨ and it includes the exploitation of the persons of others, sexual exploitation, forced labour, slavery or similar practices and the removal of organs.

Article 3 of the Trafficking in Persons Protocol provides consistency and consensus around the world on the phenomenon of trafficking in persons. Article 5 of the Protocol requires that the conduct set out in Article 3 should be criminalized in domestic legislation. It is not necessary that the domestic legislation should follow the language of the Protocol precisely, but it should be adapted in accordance with the domestic legal systems to give effect to the concept contained in the Protocol.

History of Human Trafficking in the World

According to the definition of Human Trafficking, if any person, of whatever gender or age, is taken somewhere against his or hell will, without full information about what that person may be getting into, it is human trafficking. 

To understand the history of human trafficking, one can understand it through the following tiers:

1. African Slave Trade

The earliest form of human trafficking that can be traced leads to the ¨African Slave Trade¨. Different African groups served as both, an item of trade and middlemen, for the American and European continents that were involved as buyers. This trade is the earliest memory in the history of human kind to prove human trafficking. 

This trade was both legal and government-tolerated, prior to the first law against slavery by the British in 1807 followed by the United States suit in 1820 which banned slavery over 40 years before the American Civil War. 

2. White Slavery

White slavery can be defined as the procurement of a white female against her will for prostitution, by use of force, deceit, or drugs. It came into the picture after the African Slave Trade and gained attention after which the government began to cooperate to fight it. The International Conference against white slavery was organized in the year 1899 and 1902 in Paris and in 1904, the International Agreement for the Suppression of the ¨White Slave Traffic¨, was signed, yet the criminalization of white slavery was not legalised until 1910.

3. World War I

Much needed attention was drawn towards the efforts against white slavery with the first world war crisis. However, the first international organization of nations, the League of Nations, arose out of the First World War, and it was the first time agreements could be made within a set of organizations. 

The mandates given to the various Allied Powers over nations in Africa and the Middle East brought attention to the international trafficking in all women, not simply white women; and additionally in children, both male and female. In 1921, 33 countries at a League of Nations international conference signed the International Convention for the Suppression of Traffic in Women and Children. At this time, human trafficking only covered trafficking for purposes of sexual exploitation and prostitution.

4. MODERN HUMAN TRAFFICKING

United Nations criminalized trafficking under the protocol of Transnational Organized Crime in 2000, still, at the very least 510, known trafficking flows all over the world. In recent years forced labour mitigations have been increasing which in turn has decreased the share of trafficking for sexual exploitation. In the year 2007, 32% of trafficked persons were forced labour migrants, and 4 years later, the share reached 40%. At the same time, trafficking in women is decreasing steadily, from a 74% share in female victims in 2004 to 49% in 2011. Unfortunately, it is matched by an increase in trafficked girls, from 10% up to 21% in 2011.

Development of Human Trafficking

In the past decades, human trafficking was carried out in various forms on various magnitudes, from African slave trade to Modern human trafficking, the growing international phenomenon of human trafficking has most certainly walked a long path and unfortunately, still continues to exist even in the year 2020.

After existing for decades, this illegal activity is usually seen to have originated from countries in Southeast Asia, Eastern Europe, and Sub-Saharan Africa, and the main cause of human trafficking in these origin countries stems from adverse circumstances like religious persecution, political dissension, lack of employment opportunities, globalization, poverty, wars, and natural disasters. Here, the recruiters seek migrants through various mediums, like the internet, employment opportunities, agencies, media, and local contacts, and the migrants view the services of the smuggler as an opportunity to move from impoverished conditions in their home countries to a more stable and developed environment. Although these victims often leave their destination country voluntarily, the majority are unaware that they are being recruited for a trafficking scheme. Some may be kidnapped or coerced, but many are bribed by false job opportunities, passports, or visas, for various types of exploitations like sex slavery, bonded labour, forced labour, prostitution, child labour, organ transplant etcetera. 

Although this inhumane practice unfortunately not very new to the world, concerted efforts specifically to curtail human trafficking started to emerge in the mid-1990s, when public awareness of the issue also emerged, and the first step taken to eradicate this problem was to convince multiple stakeholders that human trafficking was a problem warranting government intervention. Soon the first comprehensive federal legislation specifically addressing human trafficking, the Trafficking Victims Protection Act of 2000 (TVPA) was passed and many federal agencies were given the oversight of human trafficking, including the Departments of Justice, Homeland Security, Health and Human Services, and Labor and the U.S. Agency for International Development. The primary U.S. agency charged with monitoring human trafficking is the State Department’s Office to Monitor and Combat Trafficking in Persons (also called the trafficking office).

In addition, many governmental entities throughout the world started getting actively engaged in the attempt to stop or at least slow the activity of trafficking in humans, and in 2000 the UN finally established the Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and Children, which provided a commonly accepted working definition of human trafficking and called upon countries to promulgate laws to combat the practice, to assist victims, and to promote coordination and cooperation between countries.

Magnitude of Human Trafficking

Currently, 12.3 million adults and children are forced into labour, bonded labour, and forced prostitution, and out of this number, 56 per cent consist of Women. 1.8 person per 1000 persons worldwide is a victim of human trafficking today and this number is increasing to 3 persons per 1000 persons in Asia and the Pacific. These victims are trafficked both within and outside the international borders and these victims consist of both migrants and internally displaced persons. 

Till date, there still exist 62 countries which are yet to convict a trafficker under the U.N. Protocol to Prevent, Suppress and Punish Trafficking in Persons, 2000 and 104 countries are yet to establish laws or regulations regarding human trafficking in the country. According to estimates, internationally 32 billion dollars are generated every year through human trafficking concluding that every year 32 billion dollars get traded illicitly in the world with no taxes being paid. According to the US Department’s Annual Trafficking in Persons Report, 2013 and the State Department’s Annual Trafficking in Persons Report, the global financial crisis has increased the worldwide trade in trafficked persons, especially in Africa and slaps six African nations on the blacklist of countries not meeting the minimum standard of combating trafficking.  

According to the report mandated by Congress, data and statistics from 175 countries around the world show that the amount of human trafficking goes on within their own borders, which amounts to modern slavery. It has been found that 79% of the women trafficked are subjected to sexual exploitation, and these victims are usually trapped by women from their own village and known persons on the facade of giving them a better life.

The huge number that illustrates the illegal trade of human trafficking quite efficiently portraits the magnitude of human trafficking in the world but unfortunately, that is not where this ghastly act end. According to many reports, many countries do not report the exact number of trafficking in their country as they fear that their country may be ranked in the list of defaulting countries. Until the government submits its exact statistics on the extent of trafficking and the conviction statistics, it becomes difficult not only to assess the magnitude of trafficking in the world and in each country but also to take measures to check the problem. 

Human Trafficking in India

Although the practice of Human Trafficking has been strictly banned under the Indian Law, yet this illegal activity exists in quite a shameful magnitude in the country. The most prominent practice of human trafficking in the country where women are considered goddesses is the trade of women and girls for the purpose of commercial sexual exploitation or forced marriages. 

According to estimates, 20 to 65 million people get affected by human trafficking in India and this trade takes place both in and out of the country. A most common sight is women getting transported from neighbouring countries for sexual exploitation and girls from the country getting trafficked to the Middle-East for the same purposes. 

Although the country is home to the largest democracy in the world, the reason for these illicit activities is found to be the widespread poverty in the country and lack of proper education. These shortcomings have resulted in a myriad of human rights violations, especially against the women and girls in the society where patriarchy prevails.

Even though this unjustified unfair practice of human trafficking still continues to exist in the world as a social stigma and as a blot on the developing society, but through time this illicit activity has gone through many folds of recognition and has been able to achieve a worldwide awareness, with appropriate laws enforced against it, which can possibly help erase this practice of unnecessary exploitation of the vulnerable and make the world a better place to exist in.