Author : Megha Shukla, Student at Himachal Pradesh National Law University
ABSTRACT
“It is not my purpose to just create a ruckus, my attempt is that the appearance should change. If not in my heart then maybe in your heart, the fire anywhere but the fire of change should light.”
In the era of 21st century where modernization is prevailing in the world where mainly transfer of technology is done there also exists a small sector of the human community, whose sale is not bound to just technology but of human beings. These people in the lure of earning money sell human beings for various purposes and among those purposes, the most prevalent purpose is selling women for prostitution.
In our country where around 1.4 Billion people are there and among this vast population the illiterate population is greater than the literate population leading to the non-reporting of the cases of missing girls due to the societal status pressure where the questions are raised on the character of the girl herself and according to statistics most of the missing girls are pushed into the business of prostitution by the pimps. Numerous girls are bought and sold in this market where they are considered as goods for the trader and the buyer and have lost the status of being a human itself. Since these sorts of crime are not reported, the general public isnot usually aware of the vastness of this business but on a certain level, they are all aware of the dangers of it.
This paper will focus on the Trafficking done for prostitution purpose, what are their rights that need to be protected by law, this paper will involve case studies of the victims. This paper is a voice for such people who have suffered this fate and are unheard by the society.
Key Words: Human Trafficking, Prostitution, Women, Slavery and
INTRODUCTION
According to United Nations’ Palermo Protocol, “Trafficking in persons can be defined as the recruitment, transportation, transfer, harbouring or receipt of persons, utilizing the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or a position of vulnerability or the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for exploitation. Exploitation should include, at a minimum, the exploitation of 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 organ”.[1]
Comprehensively it’saccessed that there are around forty million people who are within the present-day subject to slavery. Anyway, the genuine numbers are not accessible on account of the number, for the most part, goes unnoticed, something even the United Nations suggests as “the hidden figure of crime.”[2]Human trafficking acquires overall profit of for the most part $150 billion consistently for vendors, around $99 billion which starts from commercial sexual misuse.[3]Extensively, a normal 71% of oppressed are women and youngsters, although men and youngsters speak to around 29% globally[4].
TRAFFICKING CONCERNS IN INDIA
The Indian Constitution impedes trafficking[5]. However, India is a major form of source, goal and travel nation for the crime of trafficking which is for the sexual profiteering and constrained work, and with the declining sex proportion, dealing for matrimony as the declining ratio of the gender is turning into another drawing reason for trafficking of women and young girls. The vindictive game plan around this malicious work continues despite the many enactments which exist to fight the same.[6] The main movement of people is from Bangladesh and Nepal into India and sometimes it is even beyond these routes to various parts of the world. The border of these nations is very long thus making it very easy for the movement of these people. There exist around twenty checksalong the border of Bangladesh which is around 4,156 km distant. However, passing the boundary is not much of a task, and cash may change hands in various ways making it very easy for these people to continue with their cross border business. With Nepal, the recognitions of trafficking and all the similar kinds of dealings is very difficult to be identified because of the open border policy that exists between India and Nepal.[7] Since India and Nepal have open border strategy, dealing might be tough to recognize but the similar condition is lacking with Bangladeshis, however dealing from both these nations happens. Inside India, there exist various elements which work as vacillating factor affecting dealing of Indian men, women and youngsters. In India, there exist various social practices because of which girls might be dealt with. One of these is the devadasi framework which although prohibited still exists in rural parts of India and another such strong factor is of poverty and destitution.[8] There are again plentiful ladies who eagerly transfer to the United States, Europe and the Middle East to work as house worker who is swindled by agencies, in some cases are trafficked as well. Men, ladies and children are dealt inside India as well as abroad are forcefully kept in the state of bondage through various methods, for example, not providing them with the wages, their travel documents are seized, the middlemen are given unnecessary benefits for the bonded labour to take care of the benefits. Bonded labour within the nation is additionally a significant concern.[9]
India is likewise a target nation for people from Nepal as well as Bangladesh, and heft of those dealt from these nations is mostly constituted of mainly women and children. In these two cases referred, the movement whether it’s legitimate or illicit might be voluntary, and in this way, vagrants might be dealt. The numbers are very large; however accuratestatistics are missing and should be handled in a good way. The 2020 Trafficking in Persons Report[10] additionally brings up that 90% of those who are trafficked have a place with the most held up gatherings and go through destitution and this is mostly the main cause. It additionally conveyed verification of NGO investigates tricking of girls starting from North East India with assurance of occupations and subsequently constraining them into fornication or prostitution just as constrained relationships. Ladies are sought after in Haryana and different States because of the near to the ground sex proportion brought about by sex-specific premature births. There, consequently, is by all means more push and pull factors in dealing and should be critically taken care of.
Trafficking and CONSTITUTIONAL PROTECTIONS
In its constitution, India has been addressing the issue of human trafficking in its various provisions. The chart below provides with the summary of the same.
Provisions On Trafficking In The Constitution Of India
| Article 23 | “Fundamental Rights precluding trafficking with individuals and types of constrained work”[11] |
| Article 39(e) | “Directive Principle of State Policy coordinated at guaranteeing that wellbeing and quality of people are not mishandled and that nobody is constrained by financial need to accomplish work inadmissible to their age or strength.”[12] |
| Article 39(f) | “Directive Principle of State Policy expressing that adolescence and youth ought to be secured against abuse.”[13] |
IMMORAL TRAFFIC PREVENTION ACT, 1956
India’s Immoral Traffic Prevention Act, 1956 is an enactment which exclusively deals with the subject matter of trafficking. Ms Maneka Gandhi, the Minister of Women and Child Development, on July 18, 2018 introduced in Lok Sabha “The Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018” and it was passed in that House on July 26, 2018. This enactment stirs up problems of trafficking as well as prostitution. It condemns the dealing of women and kids for profit-making sexual misuse.[14]“ The Bill additionally arranges certain reasons for dealing as ‘agravated’ types of dealing. These incorporate trafficking for: (I) constrained work, (ii) bearing kids, (iii) inciting early sexual development by overseeing compound substances or hormones, or (iv) begging.”[15] The punishment that concerns with the issues of aggravated trafficking is much higher than for simple trafficking. Under this act keeping a brothel as well as surviving on the money of prostitution of these women is a liable to be punished. On the other hand, if the dependent is not over eighteen years of age, he/ she shall carry immunity for the same.[16] A segment of the noteworthy components of trafficking isprotected by the Act. For example, inducing persons for the sake of prostitution[17], detain someone in a place where such activities are carried out[18], providing protective homes to the victims [19] etc. On the off chance that an individual is found with a child in a house of ill-repute carrying such activities, there exists a supposition that these youngsters have been held back in that place for the reasons of sexual abuse unless the contrary is proved.[20] The Act also administers provisions for the rehabilitation and rescue of the sufferers. [21]To assure that the victim’s rights are not bugged, it necessitates that there must be two lady police officers available throughout the procedures and added that the cross-examination is finished through a lady police official.[22]
The bill is loaded with fluffy arrangements that criminalize activities without culpability or criminal intent. It criminalizes electronic data that “may prompt” an offence of trafficking. Penal provisions against “promoting or facilitating the trafficking of persons“ are also very ambiguous and vague. Properties might be attached on the off chance that they are “ likely to be used” for the consignment of an offence under this act.
| Legislation Provisions relating to trafficking Immoral Traffic Prevention Act, 1956
| Provisions relating to trafficking Immoral Traffic Prevention Act, 1956 Section3: “Keeping of a brothel”.[23] Section 4: “Living on the profit of prostitution of others.” [24] Section 5: “Procuring, actuating or taking individual for prostitution.”[25] Section 6(1): “Detaining a person in premises where prostitution is carried on.”[26] Section 6(2):” Presumption of offense if an individual is found with a kid in a house of brothel.”[27] Section 7: “Prostitution in the region of open spots.”[28] Section 8: “Seducing or requesting.”[29] Section 9: “Seduction of an individual in custody.”[30] Section 15: “Two ladies cops to be available during the pursuit, and cross examination is to be finished by a lady Police Official.”[31] Section 16: “Rescue on Magistrate’s bearings.”[32] Section 17: “Intermediate care in a protected spot, not with those with a destructive impact over her.”[33] |
MISCELLANEOUS LEGISLATIONS RELEVANT TO TRAFFICKING
There are other penal laws as well which deal with the issue of trafficking. These legislations, deal with criminalizing of various offences which are not exclusively dealt with in the ITPA. These comprise penalizing acts such as procuring, buying and selling of human beings, importing or exporting human beings, buying and selling minors, coercing or forcing marriage of minors, kidnapping/abducting and using force for trafficking, Slavery and slavery-like conditions, servitude, bondage and unacceptable forms of labour, and others.
| LEGISLATIONS | Section | DETAILS OF THE PROVISION |
| Indian Penal Code, 1860 | 366 | “Capturing, kidnapping or instigating a woman to constrain marriage”[34] |
| 366A | “Acquiring a minor young lady.”[35]
| |
| 366B “Importation of girl under 21 for sexual misuse.”[36] | ||
| 367 | “Kidnapping/ abducting to expose an individual to grievous hurt or slavery.”[37] | |
| 370 | “Purchasing or discarding an individual as a slave”[38] | |
| 370 A | “Misuse of a trafficked person”[39] | |
| 371 | “Habitual dealing in slaves.”[40] | |
| 372 | “Trading minor for prostitution.”[41] | |
| 373 | “Trading minor for prostitution.”[42] | |
| 374 | “Forcing an individual to labour”[43] | |
| Prohibition of Child Marriage Act, 2006 | 12 | “Child marriage void, if after that the minor is sold or trafficked or used for immoral purposes.”[44] |
| Children (Pledging of Labour) Act, 1933 | 4-6
| “Penalties for pledging labour of children (under 15 years).”[45] |
| Bonded Labour System (Abolition) Act, 1976 | 16 | “Compelling a person to render bonded labour or forced labour.”[46] |
| Child Labour (Prohibition and Regulation) Act, 1986 | 3 | “Child work in certain employments. Juvenile Justice Act, 2000”[47] |
| 2(vii) | “A child in need of care and protection includes one who is vulnerable and likely to be trafficked.”[48] | |
| 24 | “Employment of child for begging.”[49] | |
| 26 | “Procuring juveniles for hazardous employment or bonded labour is punishable.”[50] | |
| Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 | 3(vi) | “Compelling or enticing a member of a Scheduled Caste or Scheduled Tribe.”[51] |
| 3(xii) | “Using a position of dominance to sexually exploit a Scheduled Caste or Scheduled Tribe woman.”[52] |
JUDICIAL PRONOUNCEMENTS ON HUMAN TRAFFICKING
Despite taking a glimpse at the provision in our enactments, case laws urbanized by judges are besides part of the domestic law. These Case laws give a note worthy comprehension into the route that the law is intriguing, and the rendition the courts might have on some provisions of the law. The decisions of the court supervise issues extending from supervision of trafficking victims to the constitutional safeguard of victims along with the trafficker’s prosecution. Additionally, instead of cross-border smuggling, the focus is on domestic trafficking. Nonetheless, studies have indicated that convictions have been wretchedly extremely small and during that time the trafficked victims have been re-victimized most of the times in the process.[53]
The High Courts as well as the Supreme Court have laid down various doctrine dealing with the rights of the victim and other pertinent issues such as child protection and directions to the government. These principles have had a profound effect on the application of justice in cases of trafficking. The brief of these are:
Victim’s Rights: The main concern of the judiciary was the protection of the victims and providing them with rights. In Prajwala v Union of India[54], it was demanded by the court that the implementation of the protocol of the victims. In some cases, there have been incidents where the perpetrator of the crime have been made to pay compensation to the sufferers of the same as in Bodhisattwa Gautam v Subhra Chakraborty[55], wherein a false promise of marriage was made. He went through the wedding ceremony as well yet it ended up being bogus. This has been applied to foreign nationals also. This principle has been used in the case of trafficking as well, as seen in PUCL v Union of India[56], where children were trafficked and the court-ordered to pay compensation for the same.
- Directions given to State functionaries :
Vishal Jeet v Union of India and Others[57] was a landmark judgement where the Supreme Court willingly volunteered to give directions for the rehabilitation and protection of the individuals who had been devoted as devadasis by their families or communities for cultural reasons and were presently in prostitution. While devadasis and jogins are from various states in India, this additionally could apply to Nepali ladies who are likewise committed, but in Nepal, and end up in brothels in India. In Gaurav Jain v Union of India,[58] the court believed that the state has to enable women to lead a life of dignity, to rescue them and to rehabilitate them. The Court has also taken into consideration the callous and indifferent behaviour of the State Administration that is referred to in the case of identifying of bonded labourers, releasing them and their rehabilitation facilities that are overlooked nationwide. It was contended that whenever a labourer is shown to have provided work there will be a prerequisite presumption that there has been an advance payment provided to him for that work and therefore is a bonded labour. The burden of disproving this presumption is upon the employer. This observation was made by the court in Neerja Chaudhary v State of Madhya Pradesh[59].
3.Special safeguard to the children: Children have been divided into two categories, children who have been trafficked themselves and children who require care and protection (those vulnerable to being trafficked). Prerana v State of Maharashtra[60] held that children who have been trafficked themselves should also be considered as children in need of care and protection[61], and not as children in conflict with the law. Gaurav Jain[62] among other things also dealt with children of sex workers who were vulnerable. The Court held that they should not be allowed to live in their homes as their surroundings were undesirable. Yet another case was Lakshmikant Pandey v Union of India[63] which examined the vulnerability of children being trafficked in adoption rackets due to the lack of an effective protection mechanism. The court went on to create an appropriate mechanism to fill the gap, especially in the context of intercountry adoptions.
GAPS IN THE LEGAL FRAMEWORK OF TRAFFICKING IN INDIA
- There are many enabling provisions of different treaties which can be benefited of however flopped as there is non-sanction of UNTOC and conventions and this demonstrations a significant obstacle.
- There exists arrangements in the Immoral Traffic Prevention Act which punish the person in question ,i.e., the victim and thus there is a general sensitivity which is missing from the law. There is need to bring a more sensitive law which can take into consideration the major concerns and the effects of trafficking which are left with the victim and should not be penalized for the acts which flow through the trafficking business itself.
- Trafficking is not considered as a structured crime and in the trafficking cases, the provisions associatedwith the organized crime are omitted.
- There is a vague language which could be misused and abused very easily by the brothel keepers and the agents.
- The most prevailed trafficking is done to the LGBT community and no other specific laws are existing for the people of this community.
- There exists a provision which deals with the issue of trafficking by setting up an Anti Trafficking Unit[64] which is to work at the nationwide level. There also exist provisions for Anti Trafficking committees both at the district[65] and state level [66]. In addition, the bill should also provide a provision for setting up National Anti Trafficking Relief and Rehabilitation Committee. [67] These committees have caused an overlap of functions which lead in an undue delay and huge wastage of time and also funds which could have been utilized in various other ways to help the victims.
- The Supreme Court in the case of BudhadevKarmaskar v. State of West Bengal[68], the main goal of the court was to provide sex workers who intentionally want to quit with adequate rehabilitation and are thus provided with technical skills for their livelihood. Thus it was held that the state is to endow with the same to the victims. However, the Bill treats all sex workers in a similar way which is, as victims of trafficking. The facet of voluntariness and thus every person is considered as prey of sex trafficking. Following the contemporary provisions of the Bill, all these assumed victims, upon salvage, are to be sent to therapy homes, even when it means forcing them to go to improve homes. This is an inherentshortcoming in ourat hand lawful framework that has been aptly acquired in this Bill. This mirrors the cultural outlook towards prostitution as a line of work.
CONCLUSION
For that reason, we can conclude that sex work sterilizes sexual misuse and such a representation can’t be acceptable to watch over India in its existing situation. There is far to go before we accomplish our point of examining the peril of human trafficking with India. Presently, India is placed among Tier-II nations in runningtrafficking with people, implying that on the other hand, India has been legitimate in its vow to scuffle the evil of human trafficking, it has not had the alternative to adequately manage the question of trafficking with people.[69]
FOOTNOTES
[1] United Nations’ Palermo Protocol
[2]“Forced Labor, Modern Slavery, and Human Trafficking.”INTERNATIONAL LABOR ORGANIZATION. Accessed July 22, 2020. http://www.ilo.org/global/topics/forced-labour/lang–en/index.htm. “Monitoring Target 16.2 of the United Nations Sustainable Development Goals.” United Nations Office on Drug and Crime. Accessed July 22, 2020. https://www.unodc.org/documents/research/UNODC-DNR_research_brief.pdf.
[3]“Human Trafficking by the Numbers.”HUMAN RIGHTS FIRST Accessed July 22, 2020. https://www.humanrightsfirst.org/resource/human-trafficking-numbers.
[4]“Trafficking and Slavery Fact Sheet.”FREE THE SLAVES. Accessed July 22, 2020. https://www.freetheslaves.net/wp-content/uploads/2018/04/Trafficking-ans-Slavery-Fact-Sheet-April-2018.pdf.
[5]Constitution of India, art. 23
[6] The Bonded Labor System (Abolition) Act, 1976.
[7] Adapted from Trafficking in Women and Children in India, Orient Longman, New Delhi (2005) pp 10-12.
[8] Dedicating a girl to prostitution, though ostensibly dedicated to serve a goddess.
[9] Trafficking in Persons Report, 2020; 20th ed.
[10]Ibid.
[11] Constitution of India. art. 23
[12] Constitution of India art. 39 (e)
[13] Constitution of India art. 39 (f)
[14] Immoral Traffic Prevention Act, 1956 , Sect. 3.
[15] Immoral Traffic Prevention Act, 1956 , Sect. 2.
[16] Immoral Traffic Prevention Act, 1956 , Sect. 4.
[17] Immoral Traffic Prevention Act, 1956 , Sect. 5.
[18] Immoral Traffic Prevention Act, 1956 , Sect. 6.
[19] Immoral Traffic Prevention Act, 1956 , Sect. 21.
[20] Immoral Traffic Prevention Act, 1956 , Sect. 6 (2-A).
[21] Immoral Traffic Prevention Act, 1956 , Sect. 16.
[22]Immoral Traffic Prevention Act, 1956 , Sect. 15(6A).
[23] Immoral Traffic Prevention Act, 1956 , Sect. 3.
[24] Immoral Traffic Prevention Act, 1956 , Sect. 4.
[25] Immoral Traffic Prevention Act, 1956 , Sect. 5.
[26] Immoral Traffic Prevention Act, 1956 , Sect. 6(1).
[27] Immoral Traffic Prevention Act, 1956 , Sect. 6(2).
[28] Immoral Traffic Prevention Act, 1956 , Sect. 7.
[29] Immoral Traffic Prevention Act, 1956 , Sect. 8.
[30] Immoral Traffic Prevention Act, 1956 , Sect. 9.
[31] Immoral Traffic Prevention Act, 1956 , Sect. 15.
[32] Immoral Traffic Prevention Act, 1956 , Sect. 16.
[33] Immoral Traffic Prevention Act, 1956 , Sect. 17.
[34] Indian Penal Code, Sect. 366
[35] Indian Penal Code, Sect. 366 A
[36] Indian Penal Code, Sect. 366 B.
[37] Indian Penal Code, Sect. 367
[38] Indian Penal Code, Sect. 370
[39] Indian Penal Code, Sect. 370A.
[40] Indian Penal Code, Sect. 371.
[41] Indian Penal Code, Sect. 372.
[42] Indian Penal Code, Sect. 373.
[43] Indian Penal Code, Sect. 374
[44] Prohibition of Child Marriage Act, 2006, Sect. 12.
[45] Children (Pledging of Labour) Act, 1933, Sect. 4, Sect. 5, Sect. 6.
[46] Bonded Labour System (Abolition) Act, 1976, Sect. 16.
[47] Child Labour (Prohibition and Regulation) Act, 1986, Sect. 3.
[48] Child Labour (Prohibition and Regulation) Act, 1986, Sect. 12.
[49]Child Labour (Prohibition and Regulation) Act, 1986, Sect. 24.
[50] Child Labour (Prohibition and Regulation) Act, 1986, Sect. 26.
[51] Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Sect. 3 (vi).
[52] Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Sect. 3 (xii).
[53] Judicial Handbook on Combating Trafficking of Women and Children for Commercial Sexual Exploitation, UNICEF (2004) .
[54]Prajwala v Union of India,(1996) 1 SCC 490 (India).
[55] The Chairman, Railway Board v Chandrima Das, AIR 2000 SC988 (India).
[56]PUCL v Union of India, (1998) 8 SCC 485 (India).
[57] Vishal Jeet v Union of India &Ors.,(1990) 3 SCC 318 (India).
[58] Gaurav Jain v Union of India,AIR 1997 SC 3021 (India).
[59]Neerja Chaudhary v State of Madhya Pradesh,AIR 1984 SC 1099 (India).
[60]Prerana v State of Maharashtra, (2003) MLJ 105 (India).
[61] Juvenile Justice (Care and Protection) Act, 2000, Section 2(d) ‘child in need of care and protection’ means a child : (vi) who is being or is likely to be grossly abused, tortured, or exploited for the purpose of sexual abuse or illegal acts ; (vii) who is found vulnerable and is likely to be inducted into drug abuse or (viii) who is being or is likely to be abused for unconscionable gains.
[62]Gaurav Jain v. Union of India, AIR 1997 SC 3021 (India).
[63]Lakshmikant Pandey v Union of India,AIR 1984 SC 469 (India).
[64] Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill 2018, Sect. 10.
[65] Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill 2018, Sect. 12.
[66] Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill 2018, Sect. 13.
[67] Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill 2018, Sect. 11.
[68]BudhadevKarmaskar v. State of West Bengal,(2011) 10 SCR 577 (India).
[69] U.S. State Department, Trafficking In Persons Report (2017) Pg. 205.