Human trafficking is defined as the trade of humans like a commodity. Human trafficking includes forced labour, drug trafficking, sexual slavery, bond labour and commercial exploitation, etc. Human trafficking comes under the gravest and heinous crimes which are intrusive in nature. Human trafficking crimes are presumed to be organized crimes which make it more elusive. The basic purpose of such crimes is to make monetary benefits out of victims by moving and recruiting in different sectors like prostitution, slavery etc. This crime has its roots in the grounds and branches extended overseas. Countries like India, Africa, Canada and the USA are adversely affected. In India, the situation of human trafficking is been getting worst and during Covid-19 outbreak, it increased rapidly. Vulnerable groups like women, children, job seekers and refugees are prone to exploitation. There’s always been a constant need for the criminalization of trafficking and devoid its roots completely. This kind of crime brutally affects the victim’s conditions and his abilities to get out of such situations. Worldwide women are trafficked for sexual exploitation. It has been estimated that 21 million at international level and 9 million at the national level have been the victims of this crime. According to the estimates in India, human trafficking may affect between 20 and 65 million people.
Table of Contents
Definition of Human Trafficking
Human trafficking is acquisition and exploitation of people, through means, such as force, fraud or deception. The practice ensnares millions of women and girls into modern-day slavery, many of whom are sexually exploited. “Human trafficking involves recruitment, transportation, transfer, harbouring or receipt of persons by means of the threat or use of force or other forms of coercion/deception, for the purpose of 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 removal of organs”. [1]
Elements of Human Trafficking
Following are the major elements of human trafficking:-
1.ACTUS REUS [ACT-WHAT IS DONE?] – Transportation, recruitment, transfer, harboring or receipt of persons. Movement isn’t necessary.
2.MEANS/ MODE OF LIABILITY/ HOW IS IT DONE? – Threat, use of force, coercion, abduction, abuse of power of vulnerability, or giving payments or benefits to a person in control of the victim.
3.PURPOSE/ MOTIVE / WHY IS IT DONE? – The only motive is the exploitation of people. Exploitation comprises of sexual exploitation of women leads to prostitution industry. Exploitation of minors for child labour and beggary.
4.CONSENT– Consent is considered irrelevant in case of minors. In Indian law, consent of a child under 18 years of age is deemed exploitation, prima facie.
Statistics on Human Trafficking
According to the National Crime Records Bureau [NCRB] data submitted in 2019, Mumbai and Kolkata had maximum cases of trafficking in women and children, mainly for forced marriage, child labour, domestic and sexual exploitation. “Mumbai followed by Delhi, was among the most populated metros with a population of 18,394,912 and 16,349,831 respectively. Kolkata had 14,035,959, as per the 2011 census. About 35% of the victims trafficked for forced labourers were also females, both women and girls. Madhya Pradesh has recorded the highest no. of cases of missing children while Maharashtra reported most cases of missing women”. [2]
In 2014 DASRA report mentioned that “approximately 16 million women are victims of sex trafficking in India a year, while 40% of them are adolescents and children. And more than 70% of victims are illiterate and 50% of them have a family income of less than $1 per day”. [3]
Need for Criminalization
Human trafficking laws should be criminalized in every country to secure the natural rights of people as human trafficking is straight violation of human rights. The broader perspective to criminalize this crime is to scrutinize the authority that controls the whole organization and due to lack of laws and adequate administration, they somehow remain unbothered. To unshackle the whole web of trafficking mafias there is a strong need to introduce such laws which provide a full proof solution to this problem. To criminalize these issues, we have to work on its roots and causes like lack of awareness, poor social system and maladministration.
Bodies like UNODC [United Nationsation’s Office on Drug and Crime], UNTOC [United Nations convention against Transnational Organized Crime] provide assistance to the states in implementing their protocols to prevent, suppress and punish trafficking in persons. In addition to UNTOC protocols, national legislation should adopt the broad definition of trafficking prescribed under Article 3 and Article 5 of Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime. [4]
Human Trafficking Laws in India
Indian government has penalized human trafficking through different laws. IPC Sections 366[A], S- 366[B], 370 and 374 penalize the criminals with imprisonment up to 10 years and fine. Other laws that deals with trafficking –
- The Juvenile Justice Act
- The Information Technology Act
- The Immoral Traffic Act
- The Child Labour Act
- The Bonded Labor Abolition Act
- Transplantation of Human Organs Act
Article 23 of the Indian Constitution deals with prohibition of traffic in human beings and forced labour & Article 24 deals with the prohibition of employment of children in factories.
https://legalreadings.com/aruna-shanbaug-v-union-of-india-case-analysis/
The Trafficking of Person’s Bill, 2018
The Trafficking of Person Bill was introduced by Maneka Gandhi in Lok Sabha in July, 2018. At the time of introduction of the bill, Maneka Gandhi was minister of women and child development. The bill provided prevention, rescue and rehabilitation of trafficked persons. It was passed on July 26, 2018. The bill received a lot of harsh criticism. The bill was pending to be passed by Rajya Sabha but due to ambiguous provisions of bill it never made it to Rajya Sabha and lapsed with the Modi govt. The term ends in 2019.
The bill relies on the raid, rescue and rehabilitation model, which in its form is nothing but victim detention. Given the dismal condition of much rehabilitation, the bill doesn’t even meet its standard objective.
Criticism
Following are the major criticism received by this bill:
-The bill doesn’t clarify the existing laws.
-There are higher chances of overlapping in implementation of law by the concerned authority.
-The bill presumes that the owner had knowledge and his guilt will be assumed in case of brothel or place of exploitation.
-The bill provides aggravated and non- aggravated forms of trafficking but there is no classic distinction between them.
-The bill fails to address source aspects like the seller and purchasers.
-The bill doesn’t assure the victims security.
-Victim’s immunity is absent in this bill.
Conclusion
India is at dangerous position in case of human trafficking. On keeping track of these human trafficking cases, it is quietly noticeable that states like Mumbai, Kolkata, Uttar Pradesh and Madhya Pradesh have higher number of cases. The slums and rural areas of such states have become the prime location for such cases. Indian government has introduced various laws to curb the issue of trafficking. The Trafficking has been criminalized under IPC Section 370 with punishment of more than 10 years but the provision nowhere defines trafficking and doesn’t have any provision penalizing sexual exploitation. The Constitution of India also mentions trafficking under Article 24. There are also other Acts like Prohibition of Child Labour and Immortal Traffic Act that explicitly deals with the subject matter only. As in human trafficking exploitation can be of various types depending on the gender, age and occupation. There is a lack of such statutes that cover all aspects of such crimes which increases the demand of a single separate statute that deals with it wholly. Recently the anti trafficking bill was passed in Lok Sabha in July 2018. The bill was passed in Rajya Sabha. The bill failed to fulfill its purpose. It was unable to provide a proper framework for the victim rehabilitation. The bill lacks major points like the accountability of dealers in case of sexual exploitation. Also, the bill proved to be ambiguous in nature and raises the issues of overlapping with other laws already existing. In conclusion we can state that the bill needs to be rectified in a way that it meets its soul objective.
REFERENCES
[1] UNODC, ‘Addressing Trafficking in Persons and Smuggling of Migrants’ ( UNODC, ( 2009 ) available at: https://www.unodc.org/southasia/en/topics/frontpage/2009/trafficking-in-persons-and-smuggling-of-migrants.html(last visited on 23 October, 2020).
[2] Rahul Tripathi, “Mumbai, Kolkata see highest woman and child trafficking cases: NCRB study”,The Economics Time of India, February 10, 2020) available at: https://m.economictimes.com/news/politics-and-nation/mumbai-kolkata-see-highest-women-child-trafficking-cases-ncrb-study/articleshow/74053964.cms (last visited on 23 October, 2020).
[3] “Zero traffick : eliminating sex trafficking in india”,DASRA, March 2014) available at: https://www.dasra.org/resource/eradicating-sex-trafficking (last visited on 23 October, 2020).
[4] OHCHR, ‘Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime‘ 55/25 of 15 November 2000 available at: https://www.ohchr.org/en/professionalinterest/pages/protocoltraffickinginpersons.aspx (last visited on 23rd October, 2020).
BY PRERNA PATHAK | LLOYLD LAW COLLEGE , NOIDA