There Is One Absolute Commonality Amongst The Victims Of Human Trafficking; The Loss Of Personal Freedom. (By- Ashiev VM)
There Is One Absolute Commonality Amongst The Victims Of Human Trafficking;
The Loss Of Personal Freedom.
Authored By- Ashiev VM
ABSTRACT
Human
Trafficking is the action of capturing and illegally transporting people from a
particular region or place to some other region. According to the United
Nation, “Human Trafficking is the recruitment, transportation, transfer,
harbouring or receipt of people through force, fraud or deception, with the aim
of exploiting them for profit.[1]”
Even today a large number of people across the world are subjected to Human
trafficking and it tends to be one of the horrendous violations of Human
Rights. There are various reasons for which people are subjected to
trafficking, out of which the major reasons are for sexual exploitation and
forced labour. In India, the major reason for human trafficking is for forced
labour.
Articles
22 and 23 of the Indian Constitution talks about Human Trafficking and Article
51(e) “imposes duty on every citizen to renounce practices that are derogatory
to the dignity of women.” There are
various provisions in the Indian Penal Code, which deals with human
trafficking. However, the significant provisions - Sections 366A, 366B and 374
of the Indian Penal Code deal with human trafficking. The other statutes
governing Human Trafficking include “Immoral Traffic (Prevention) Act 1956,
Child Labour (Prohibition and Regulation) Act, 1986, Information Technology
Act, 2000, Juvenile Justice (Care and Protection of Children) Act, 2000,
Karnataka Devadasi (Prohibition of Dedication) Act, 1982, Andhra Pradesh
Devadasi (Prohibiting Dedication) Act, 1989, Goa Children’s Act, 2003.” Apart
from these, there are various judicial precedents concerning Human Trafficking
which are discussed. The researcher[2]
also analyses if there are need for reforms in the existing laws.
Research
Objectives
1.
To examine the causes and
consequences of Human Trafficking
2.
To examine various legal
provisions in India concerning Human Trafficking
3.
To analyse the reforms needed
in these laws
Research
Methodology
This research is based on doctrinal research.
Introduction
Human Trafficking is defined as the process in
which humans are illegally transported from one place to another, either within
the country or abroad for illegal activities like prostitution, organ
trafficking or slavery. Cross border human trafficking has become a serious
issue in recent times and it tends to be one of the horrendous violations of
human rights.Therefore, combating it through stringent laws becomes essential.
This article discusses on the causes and consequences
of Human Trafficking, examines into various legal provisions in India
concerning Human Trafficking and analyses the reforms that are required.
Causes
Of Human Trafficking
For a
better understanding on the subject matter, an idea on the causes of the same
becomes essential. The causes of Human Trafficking include “poverty, unemployment,
oppression, scarcity of resources, lack of social security, violence against
women and children, political instability, corruption, exploitation, fraudulent
acts, fake promises, need for cheap labour, lack of knowledge, lack of familial
unity, cultural and societal practices, migration, sex tourism, pornography, etc.”
Human
trafficking can be for the purpose of prostitution, slavery, domestic
servants, begging, drug peddling, smuggling, organ trafficking, forced criminal
activities, forced inclusion as soldiers, etc.
Consequences
Of Human Trafficking
Human
Trafficking can affect the victims in severe ways. It can physically,
emotionally and psychologically affect the victim in various ways. Since the
victims are treated in inhumane ways, they undergo fear, mental trauma and
other mental health issues which may have various other complexities in the
lives of the victim.
Victims
who are subjected to sexual exploitation and prostitution are prone to various
ailments like HIV/AIDS and other Sexually transmitted disease and are further
prone to substance abuse which in turn affect their health entirely. Serious
sexually transmitted diseases may also result in the death of the individuals.
In case of children and other illiterate victims, their lack of education
further complexifies the graveness of these diseases. The victims may also be
subjected to physical abuse
such
as beatings, physical tortures, etc which may result in serious injuries,
thereby hampering their future.
Apart
from affecting the personal lives of the victim, human trafficking also affects
the nation as a whole. Being an illegal activity and an organised crime, the
funds arising from human trafficking are in turn used for illegal activities like
terrorism, drug mafia, etc. This in turn, increases the transaction cost of the
state to devise mechanisms to combat all the illegal activities arising out of
Human trafficking. Ultimately, hampering the economic growth of the nation as a
whole. Combating this social evil becomes necessary in order ensure the
security and growth of the nation as a whole.
Legal
Framework
International
Instruments
There
are various international treaties and laws relating to Human Trafficking, out
of which India has ratified a few of them, which are as follows:
1.
“United Nations Convention on
Transnational Organized Crime (UNTOC), 2000.”
2.
The SAARC Convention on
“Preventing and Combating Trafficking in Women and Children for Prostitution”.
3.
Palermo Protocols which include
protocols such as “Prevention, Suppression and Punishment of Trafficking in
Persons, especially Women and Children, 2000” and “Protocol against Smuggling
of Migrants by Land, Sea and Air, 2000.”
4.
“The Convention on the
Elimination of All Forms of Discrimination against Women, 1979.”
5.
“The United Nations Convention
on the Rights of the Child, 1989.”
6.
The Optional Protocol on the
“Sale of Children, Child Prostitution and Child Pornography, 2000.”
7.
“International Covenant on
Civil and Political Rights, 1966.”
8.
“Universal Declaration of Human
Rights, 1948.”
9.
The Convention for the
“Suppression of the Traffic in Persons and of the Exploitation of the
Prostitution of Others, 1949.”
10. The Convention against “Torture and other Cruel, Inhuman or
Degrading Treatment or Punishment, 1984.”
Constitution
Of India
Article 23(1) of the constitution states that “traffic in human beings and begar and other similar
forms of forced labour are prohibited and any contravention of this provision
shall be an offence punishable in accordance with law[3].”
Thus, the constitution of India expressly bans human trafficking and states
that doing such an act would result in punishment as per the appropriate law.
Article 24 of the Indian
constitution states that “no child below the age of 14 years shall be employed
in any industry, mine or any other hazardous employment[4].”
This provision prohibits employment of children from hazardous employment which
implicitly denotes that childrenshould not be trafficked as, the children are
trafficked for employment in hazardous and illegal activities.
Article 51(e) “imposes duty on every citizen to
renounce practices that are derogatory to the dignity of women[5].”
Clauses (e) and (f) of Article 39 of the constitution briefly states
that the people must be protected from “exploitation and abandonment.”
Indian Penal Code,
1860
The Indian Penal
Code, 1860 governs various criminal offences in India and also has various
express provisions concerning Human Trafficking.
As per Section
370 of the Indian Penal Code, 1860, “any person for the purpose of
exploitation- recruits, transports, harbours, transfers or receives a person
through use of threats, force or coercion, abduction, cheating, abuse of power,
fraudulent activities or paying the person to attain the consent is said to
have committed the offence of human trafficking[6]”
The punishments
prescribed by IPC include rigorous imprisonment for a term from 10 years, which
may extend to life imprisonment including fine in case of trafficking of one or
more persons. In case of trafficking of minor, the term may extend from 14
years to life imprisonment with fine and in case of habitual trafficking, the
punishment is life imprisonment, with imprisonment for remaining natural life
with fine. In case of trafficking by a public servant or a police officer, the
punishment is life imprisonment, with imprisonment for remaining natural life
with fine.
Clause (1) of
Section 370A states that if a person has knowledge that a minor has been
trafficked and still engages the minor in sexual exploitation in any manner,
the person shall be imprisoned with a term which may vary from 5 to 7 years
with fine.
Clause (2) of the provision states
that a person having knowledge of a person being trafficked, still subjects
him/her to sexual exploitation in any manner shall be punished with a term
which may vary from 3 to 5 years with fine. The nature of the offences is
“cognizable, non-bailable, non-compoundable”
Section 371 of the Indian Penal
Code, 1860 deals with habitual dealing with slaves. It states that “whoever
habitually imports, exports, removes, buys, sells, traffics or deals in slaves,
shall be punished with imprisonment for life, or with imprisonment of either
description for a term not
exceeding ten years,
and shall also be liable to fine[7].”
Sections 372 of the IPC and 373
of the IPC illegalises buying and selling minors for prostitution and states
that the persons involving in such act shall be liable to imprisonment of a
duration not exceeding 10 years and shall also be liable to fine.
As per Sections
366A, “inducing any girl under 18 years of age to go any such place with
intent to forced or seduced illicit intercourse with another person shall be a
punishable offence[8].”
As per Section
366B, “Importing any girl under twenty-one years with the intent that she
will be, forced or seduced to illicit intercourse with another person is a
punishable offence[9].”
Immoral Traffic
(Prevention) Act, 1956
The Immoral Traffic
(Prevention) Act, 1956 is the legislation that aims towards prevention of
commercial sexual exploitation of women and children. The act specifies the
following offences:
·
“Keeping a brother or allowing premises to be used as a brothel”
·
“Living on the earnings of prostitution”
·
“Attempting, procuring or taking person for the sake of prostitution”
·
“Detaining any person in premises for prostitution”
·
“Prostitution in the vicinity of public places”
·
“Seduction of a person in custody”
Child Labour (Prohibition And Regulation) Act, 1986
This act
regulates the employment of children below a particular age in certain
hazardous employments and prescribes punishment for contraventions. This act
has some connection with human trafficking, because of the fact that children
are trafficked for the purpose of forced labour especially in illegal
activities.
Information
Technology Act, 2000
This act
addresses the issue of pornography and prohibits the publishing and
transmission of inappropriate content in any electronic form.
Section
67A of the act
penalises the publication or transmission of material containing sexually
explicit content in electronic form.
Section
68B of the act
illegalises the publication or transmission of material depicting children in
sexually explicit act in electronic form.
This act
ensures that individuals (children in particular) are not pushed into
pornography through illegal activities like trafficking.
Juvenile
Justice (Care and Protection of Children) Act, 2000
The law is
relevant for children who are vulnerable and are therefore likely tobe the
victim of trafficking. It protects juveniles in need of care and protection.
Karnataka
Devadasi (Prohibition of Dedication) Act, 1982
Act of
dedication of any girl with or without consent of the dedicated persons
engaging her in prostitution is unlawful and punishable.
Andhra
Pradesh Devadasi (Prohibiting Dedication) Act, 1989
This law
prohibits any ceremony dedicated as Devadasi in any manner and imposes a penalty
of imprisonment for three years and fine.
Goa
Children’s Act, 2003
This act is
defined precisely in Trafficking. It includes every type of sexual exploitation
in the definition of sexual assault. Manager and owner of the establishment are
responsible for the safety of minors or children in hotel premises. There are
strict laws on about the safety of children and publishing pornographic
materials.
Landmark Cases On Human Trafficking
In People’s
Union for Democratic Rights vs. Union of India,[10]
the term ‘forced labour’ under Article 23[11]
was interpreted by the Supreme Court.
In Bandhua
Mukthi Morcha v Union of India and Ors.[12],
the Supreme Court held that whenever it is shown that a person has been working
under forced labour, it would be presumed that such labour is to be done with
some consideration or economic benefits and such labours will be entitled to
protection under law.
In Vishal
Jeet v Union of India,[13]
the Supreme Court ordered an investigation and research into the causes and the
consequences of Human Trafficking and ordered the State and Union Governments
to devise measures to combat human trafficking.
In Neerja
Choudhary v State of Madhya Pradesh,[14]
the Supreme Court ordered for rehabilitation of Bonded labours.
In M.C.
Mehta v State of Tamilnadu[15],
the Supreme Court held that a fine of Rs. 20,000 shall be imposed on premises
where child labour is imposed and such premises shall be sealed. The fine
imposed shall be used for rehabilitation of the victim.
The Need For Reforms In The Laws Governing
Trafficking In India
Human
Trafficking has attained periodic growth over the years and has evolved to
become an organised crime. Thereby proclaiming itself as a serious issue, that
has to be addressed. Some of the provisions of the present law are not
consistent enough to combat with the present strength of the crime and
therefore reforms stand essential.
Section 370 of
the IPC was amended in the Criminal Law (Amendment) Act, 2013 wherein new
terminologies were brought to increase the scope of criminalisation of the
offence. However, Section 370A has turned out to be a restricted provision as
it does not consider the exploitation of trafficked persons in other sectors of
forced labour like domestic labour, agriculture works, etc. The ambit of this
provision has to be further more widened in ordered to ensure that all kinds of
exploitation are criminalised and are made punishable.
Secondly, the
existing laws only focus on commercial sexual exploitation and do not cover
trafficking for other purposes like organ trade, soldiers for warfare, etc.
Thus, the ambit of the laws has to be further more widened in order to address
the modern issues concerning human trafficking.
Thirdly, the
existing laws do not have any preventive measures as such against human
trafficking. Only when there are measures to prevent, a major fraction of the
crimes related to human trafficking can be prevented. Once the victims are
subjected to the inhumane conditions arising as a result of this crime, it
mentally as well as physically affects them so much that they cannot attain
back their normal course of life.Further, the legal framework is insufficient in terms of providing an
effective system for the safety, recovery and compensation of victims of
trafficking.
The Immoral Traffic
(Prevention) Act, 1956 has not undergone any amendments and is not in line with
the present situation of the crime or with the current provisions of the Indian
Penal Code. Termed as the Governing Legislation for Human trafficking in the
country, it has failed to deliver its purpose and has a very limited scope.
Besides covering only commercial sexual exploitation, other crimes concerning
Human Trafficking must also have to be brought in the scope of the Act.
The act suffers from
various definitional inconsistencies. Definitions of key terms like
trafficking, commercial sexual exploitation, prostitution, etc are missing
under the ITPA Act, 1986. Prostitution is not illegalised in India, but the act
considers sex workers as offenders, again failing to address the key issue
which is “trafficking for the purpose of prostitution.” Thus, victims of sexual
offenders are treated as offenders under this act and sexual exploitation in
private premises are excluded in this act. This act further does not put forth
the rights of the victim, further exposing the victims to hardships in the
trial process. Another major failure of this legislation is that it completely
excludes the process of cross-border trafficking including inter-state
trafficking.
These are the crucial
and essential reforms that have to be considered in order to make the law
concerning Human Trafficking more competent and ensure social security of the
citizens.
CONCLUSION
Human Trafficking is one
of the most horrendous violations of Human Rights. Human Trafficking has
evolved as an organised crime associating various other illegal activities with
it. Therefore, the implementation of stringent and competent laws turns out to
be necessary. Co-operation at all levels of governance is essential to ensure
that the laws are effectively executed.
Apart from combatting
the crime, prevention of the crime through adoption of various measures would
be efficient. Creating mass employment opportunities and spreading awareness
through media and activities of NGO’s are some of the ways with which the crime
rate can be significantly reduced.
[1]Defined
by the United Nations Office on drugs and crime
[2]
Ashiev VM, Student, School of Law, Christ (Deemed to be University)
[3]
Article 23(1) of the Constitution of India, 1950
[4]
Article 24 of the Constitution of India, 1950
[5]
Article 51(e) of the Constitution of India, 1950
[6]
Section 370 of the Indian Penal Code, 1860
[7]Section
371 of the Indian Penal Code, 1860
[8]Section
366A of the Indian Penal Code, 1860
[9]Section
366B of the Indian Penal Code, 1860
[10]
(1982) 3 SCC 235
[11]Of
the Constitution of India, 1950
[12]AIR
1984 SC 802
[13](1990)
3 SCC 318
[14]AIR
1984 SC 1099
[15]1996
(6) SCC 756