THIS ARTICLE WAS WRITTEN BY SHIRSH RAJ, A STUDENT OF SCHOOL OF LAW, CHRIST (DEEMED TO BE UNIVERSITY), BENGALURU.
Human Trafficking is one of the most burning issues in all over the world. There are few countries which comes on the top in the Human Trafficking as these countries are Bangladesh, Brazil, Haiti, Pakistan, India, Sri Lanka, Nepal, Uganda, Ghana, China and many more countries are there in which Human Trafficking on its peak. Human Trafficking also divided into different types like Forced Labor, Sexual Exploitation, Forced Marriage and Organ Trafficking. And because of Human Trafficking so many lives are exploiting daily and it is also affecting the society at full extent. In India, so many laws are there to prevent and protect the people from Human Trafficking in Indian Penal Code (IPC), 1860. There is an Act also named as Immoral Traffic Prevention Act (ITPA), 1956 that protect the people from any kind of the Human Trafficking but this Act proposed in the Parliament in 2006 to make some necessary Amendments but that proposal was lapsed by the parliament in 2006. Human Trafficking also violates the Human Rights of the people who were trafficked like ‘Right to Life’, ‘The Right to Freedom’, ‘Right against Exploitation’. I am going to discuss all the legal aspects related to human trafficking.
INTRODUCTION OF HUMAN TRAFFICKING
The definition of trafficking found in the various sections of Immoral Traffic Prevention Act (ITPA), 1956. Section 5 speaks about procuring, taking and even inducing a person for the sake of prostitution. According to this section, even attempt to procure and attempt to take or cause a person to carry on prostitution amounts to trafficking. Therefore ‘trafficking’ has given a broad scope. A detailed definition of trafficking is available in the Goa Children’s Act 2003.
Though it focused on child trafficking, the definition is comprehensive. Child trafficking defined as “the procurement,recruitment, transportation, transfer, harboring or receipt of persons, legally orillegally, within or across borders, by means of 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 giving or receiving payments or benefits to achievethe consent of a person having control over another person, for monetary gain or otherwise”.
LAWS IN INDIA AGAINST HUMAN TRAFFICKING
THE SUPPRESSION OF IMMORAL TRAFFIC IN WOMEN AND CHILDREN ACT, 1956
In India, there was an Act named The Suppression of Immoral Traffic in Women and Children Act of 1956 which was an Act passed by the parliament in 1956 but it enforced in 1958 as a consequence of India signing’s the Trafficking Convention. According to this Act, prostitute can practice their trade privately but they cannot attract the customers publicly. This act said that the organized prostitution like brothels, prostitution rings, pimping, etc is illegal but if a women selling her body individually and voluntarily for the exchange of material benefits. SITA did not focus on “abolition of prostitutes and prostitution as such and to make it as per se a criminal offence or punish a person one prostitutes oneself.” Its stated goal was “to inhibit or abolish commercialized vice, namely the traffic in persons for the purpose of prostitution as an organized means of living.” Under SITA, prostitution defined as “the act of a female who offers her body for promiscuous sexual intercourse for hire. The engagement by a women in individual, voluntarily and independent prostitution was not an offence.” As there are some drawbacks, because of which it didn’t serve the purpose of enacting the Act. One of its drawbacks is that the punishments described in the Act discriminate based on sex. A prostitute defined under SITA as always a women, who arrested for soliciting under SITA could be imprisoned for up to a year, but a pimp faces only for three months. SITA allowed prosecution of persons other than the prostitutes only if the persons involved “knowingly” or “willingly” made women engage in prostitution. As well as pimps, brothel owners, madams and procurers could feign ignorance of prostitution and escape punishment. The client, moreover, not viewed as an offender and could not be sanctioned under SITA. At the last, SITA only addressed street prostitution, prostitution behind the closed doors was exempted under the Act and because of this exemption, and this is actually promoted to establishment of brothels. Because of these drawbacks in this Act, this act was amended in 1978 and renamed as Prevention of Immoral Traffic Act (PITA) as well as it received the current title, The Immoral Traffic Prevention Act (ITPA), 1986.
IMMORAL TRAFFIC PREVENTION ACT, 1956
The Immoral Traffic Prevention Act is 1986 amendment legislation passed in 1956 as a result of signing by the India of the United Nation’s declaration in New York for suppressing trafficking. The Indian Parliament amends this Act twice, in 1978 and 1986. The Immoral Traffic Prevention Act made tough laws against any type human trafficking and the punishment provided in the Act according the crime committed by the person. ITPA protects the rights of women and children. The general provisions of ITPA are that the law applied on the both male and female. The crux of this Act, addressees to the trafficking not to the prostitution as all the provisions mentioned under this Act is related to the trafficking. The trafficker trafficked the women for the prostitution then it will come under ITPA but if a woman is selling her body individually, voluntarily and independent for the exchange of material benefit then this act is not come under ITPA. The offences envisaged under ITPA are specific in the context of Commercial Sexual Exploitation (CSE). The Sections listed below:
3 ITPA:Keeping or managing (or assisting in keeping in managing) a brothel or allowing premises to be used as a brothel (including vehicle).
4 ITPA: Living on earning of prostitution (even partly).
5 ITPA: Procuring, inducing, trafficking, or taking person for the sake of prostitution. Even attempt to procure or take would constitute the offence.
6 ITPA: Detaining a person in any premises (brothel or any other) where prostitution is carried out.
7 ITPA: Anybody who carries on prostitution, or anybody with whom such prostitution is carried on, in the vicinity of public places (which includes hotel, vehicles, etc.)
8 ITPA: Seducing and Soliciting for the purpose of prostitution in any public place or within sight of a public place.
9 ITPA: Seduction of a person in custody (which include causing or assisting seduction for prostitution of a person in custody).
The crux of the Act, this does criminalize the trafficking of the women from the seducing, seduction, living on the earning of the prostitution, prostitution on the public place and furthermore, but it does not criminalize the prostitution done by the women voluntarily and independently behind the closed doors for the exchange of material benefits. The offences are described under Immoral Traffic Prevention Act from Section 3 to 9. Rather than these sections, others sections in the Act described the definitions of the specific terms in prostitution, protection of the victims, police can arrest the person involved in the trafficking without warrant, in which court the trial will be proceed and many more.
GOA CHILDREN’S ACT, 2003
In 2003 the State Government of Goa was legislated this Act and Goa Government amended The Goa Children’s Act after two years in 2005. This is the First State Level Act legislated by any State Government. This law passed especially for the protection of rights of the children. This act talked about the prevention and protection of children from various offences like Child Labor, Child Trafficking, Commercial Sexual Exploitation and the Violation of Child Rights. The definition of child given in this Act is “any person who has not completed the age of eighteen, while a child in case of child labor is any person who has not completed the age of fourteen.”Under the Act, Section 7 talked about the “Child labor and Trafficking”, Section 8 talked about “Child Abuse and Trafficking”, Section 8 talked about “Commercial Sexual Exploitation and Dedication”. These are the main sections of this Act, which talked about the trafficking of the child, and other sections talked about different issues related to the children. Section 3 talked about the Rights of the Child, Section 4 talked about the Education of the child, Section 5 & 6 talked about the Health and Nutrition of the child and Children’s Homes respectively. There are 40 sections in the Act and each one ensure the protection of child against abuse, exploitation and neglect as well as to give the better standard life to the child victims.
This bill introduced in the Lok Sabha on 22nd May, 2006. Immoral Traffic (Prevention) Amendment Bill, 2006 amend Immoral Traffic (Prevention) Act, 1956 to combat trafficking and sexual exploitation for commercial purpose. The Bill deletes provisions that penalized prostitutes for soliciting clients. It penalizes any person visiting a brothel for the purpose of sexual exploitation of trafficked victims. All offences listed in the Bill tried in camera, i.e., the public excluded from attending the trial. The term “trafficking in persons” has been defined with a provision for punishing any person who is guilty of the offence of trafficking in persons for the purpose of prostitution. The Bill constitutes authorities at the centre and state level to combat trafficking.
While prostitution is not an offence, practicing it in a brothel or within 200 m of any public place is illegal. There seems to be a lack of clarity on whether prostitution ought to be a legitimate way of earning a living if entered into by choice. Penalizing clients who visit prostitutes could drive this sector underground, preventing legal channels of support to victims of trafficking. This Bill punishes trafficking for the purpose of prostitution. The Bill does not cover trafficking for other purposes (such as bonded labor and domestic work). The rank of special police officer, who would enforce the Act, is lowered from Inspector to Sub-Inspector. Such powers delegated to junior officers could lead to greater harassment. The Bill constitutes authorities at the centre and state level to combat trafficking. However, it does not elaborate on the role, function and composition of these authorities.
It deletes the provisions related to prosecution of prostitutes soliciting for customers.
It provides prosecution of client who are involved in the sex with trafficked people.
It defines the term “trafficking in persons” and provides penalties.
It increases penalties for some offences.
It constitutes authorities at the central and state level to combat trafficking.
INDIAN PENAL CODE, 1860
The Indian Penal Code lays down the numbers of provisions related to the trafficking. The provisions are:
Kidnapping, abducting or inducing women to compel her for marriage, etc (Section 366).
Selling minors for purposes of prostitution, etc (Section 372).
Buying minors for purposes of prostitution, etc (Section 373).
Wrongful restraint (Section 339).
Wrongful confinement (Section 340).
Mental tortured/harassed/assaulted (Section 351).
Outraged of her modesty (Section 354).
Raped/Gang Raped/Repeatedly raped (Section 375).
CHILD LABOR (PREVENTION & REGULATION) ACT, 1986
This Act prohibits employment of children below the age of 14 years in notified occupations and processes. The Act also regulates the employment of children in non-hazardous occupations and processes. Some of the important prohibited occupations and process are carpet weaving, building and construction work, brick kilns, production of hosiery goods, work as domestic servants, and in tea-shops, road side eateries, etc.
THE WOMEN DEVELOPMENT CHILD WELFARE AND DISABLBED WALFARE DEPARMENT (WDCW & DWD)
The Government of Andhra Pradesh has taken so many preventive steps to prevent combatant trafficking. The Andhra Pradesh Government establishes the Women Development Child Welfare and Disabled Welfare Department (WDCW & DWD), which protect the people against Human Trafficking.
A number of anti-trafficking measures have been undertaken by the Police Department to prevent and combat trafficking. Advisory boards in all districts of the States have been formed. Since 2003-04, 1573 cases have been registered, around 4721 persons including traffickers, brothel owners, pimps, clients/customers were arrested, more than 600 victims were rescued and 110 cases have ended in conviction and 1996 persons were convicted.
As well as WDCW & DWD established 29 Swadhar homes for the women in distress and for the child development. Further with the support of UNDP, 10 more Swadhar homes established in 9 different districts and provided funds from UNDP to develop infrastructure and skill-development training facilities. WDCW & DWD also provide immediate relief to the rescued victims of trafficking by providing Rs. 10,000 each victim.
The enforcement of law and the cognizance taken by the Government of Andhra Pradesh and the police Department was fruitful step. This saved so many lives of women and children, they are living a good life in the rehabilitation homes like Swadhar, AP has designated as the best state who took the cognizance against Human Trafficking, and they are successfully undergoing with their projects related to the Human Trafficking.
CASES AND TRUE STORIES
M used to work in the fields of her hometown doing agricultural work. On average, her wages were between Rs 500 to Rs 600 a month ($12.22 to $14.66). One day Ms.M offered work in Delhi as a servant earning Rs 1500 per month. On 1 August 2005, Ms M, accompanied by two other women from her hometown, went to Delhi to the agency that promised them work. Upon arriving the women discovered that the agency housed around twenty women from different parts of India. The women were made to sleep on the floor and were given only one chapatti (a flat bread that is cooked on a grill) each to eat. Ms M sent to work for a wealthy family in Delhi. During her time working for the family, she has given little food to eat. Ms M also did not receive the money that she earned. Instead of that the money was sent back to the agency that had brought her to Delhi.
Ms M quit her job and was sent back to the agency in Delhi. Ms M was able to persuade someone to let her leave the facilities. During her time at the agency, Ms M was molested and was witness to several rapes. Ms M is a living witness to the exploitation that carried out of young girls and women who are lured with the hope of better wages to work as maidservants. There are many agencies in India as the one Ms M was in. Many women in these agencies have gone missing and nobody knows what happened to them.
P was like any other child in his village of Panbari. His family was poor and struggling to make ends meet. One day P’s uncle came to visit the family. The uncle promised a better life with good food and an education to his nephew. The uncle offered to take him to a school in a different part of India. The mother believed her brother and let P go with his uncle. The uncle sold P with three other children to a well-known child trafficker for Rs 800. P died when a fire broke out in the room the children held captive. The uncle was informed of the deaths and received Rs 500. The mother never told about her son’s death.
Jyotsna was also the victim of human trafficking. She was promised a job as a maidservant and upon arrival was sent to a trafficking agency. Jyotsna was sent to work for a wealthy family who treated her inhumanly. After quitting her job Jyotsna was sent back to the agency, where she was raped. Jyotsna was able to escape from the agency and went back to her hometown. Today, Jyotsna is working as a volunteer to help prevent other children and women from her village becoming victims of human trafficking.
Jyotsna says: I was suffering from a sense of guilt and shame, since I returned from Delhi. I felt ashamed for the humiliation that I went through and the betrayal that I suffered. Members of the Church of North India (CNI) who come and serve in our village have shared about the issue and have personally counseled me and my family members. I started feeling good. Since then I have been engaged in making communities here [aware] about the ill-effects of simple trust towards the agents, as I also prepare those who go for work outside to protect themselves from any form of exploitation, and that the family members have the right to information about their children’s/women’s whereabouts.
L was seventeen years old and was working for a rich family. After three years L died working for the family. The “owner” of the child brought her body back in a coffin to her family. The man told the family not to open the coffin and bribed them with money so that they would not tell authorities. The family was never sure that there was an actual body in the coffin.
Lives of so many women and children are getting exploited because of Human Trafficking. Human Trafficking is a crime which is increasing in the society day by day and now it entered in the veins of the society. Human Trafficking is world’s 3rd most illegal business and in 2014 this business earned Rs. 32,000,000,0 and Human trafficking is increasing day by day. There are so many laws and conventions which is enacted and signed by Indian Government to abolish Human Trafficking to its full extent in the society. But still law can’t make any difference to stop Human Trafficking in Indian and other countries. As we take the laws enacted in India to punish the criminals who involved in the Human Trafficking. The Act named as Immoral Trafficking (Prevention) Act, 1956 which defined the trafficking of person and made the person liable who are involved in the trafficking and come under the provision of ITP Act. But according to me, Human Trafficking is increased to that extent that now it is really difficult to stop it the full extent. Because of Human Trafficking, so many women, children and girls are thrown in the business of prostitution, child labor, etc. There are other businesses under human trafficking like organ trafficking, forced marriage, etc. Human Trafficking is also developing by adding more options in the trafficking as for example domestic servitude is the new type of trafficking which has been noticed since last one year. Human Trafficking is like a disease which is rapidly increasing in the society and exploiting the society as well. According to me there is no specific golden rule from which we can stop human trafficking but there are many options which help in stopping Human Trafficking like spread awareness to the people, educate the people about Human Trafficking as there are so many NGO’s are there who are working on the awareness and protection of the people from Human Trafficking. As Andhra Pradesh laws against human trafficking is one of the best laws in India and they are so effective and it is helping out in stopping the Human Trafficking very efficiently.
 Sadik Hameed, Sandile Hlatshwayo, Evan Tanner, Meltem Turker & Jungwon Yang, Background Information on Human Trafficking in India, https://asiafoundation.org/resources/pdfs/StanfordHumanTraffickingIndiaBackground.pdf