Module 2

MODULE 2
LEGISLATIONS CRIMINALIZING HUMAN TRAFFICKING IN INDIA

2.1 INTRODUCTION

Trafficking of persons is one of the gravest organized crimes and violations of human rights,
extending beyond boundaries and jurisdictions. To prevent and combat human trafficking,
coordinated efforts are required from all stakeholders to integrate their responses on
prosecution, prevention and protection.

The United Nations defines trafficking as any activity leading to recruitment, transportation,
harboring or receipt of persons, by means of threat or use of force or a position of vulnerability.
It is a trade of humans for the purpose of forced labor, prostitution, sexual slavery or
commercial sexual exploitation. Traffickers may use violence, false promises or manipulation
to lure victims into trafficking. Human trafficking is a grave human rights violation that
requires a coordinated, multi-disciplinary national and international response.

India has ratified the United Nations Convention on Transnational Organised Crime
(UNCTOC) which has as one of its Protocols Prevention, Suppression and Punishment of
Trafficking in Persons, particularly Women and Children. Criminal Law Amendment Act,
2013 has been enacted in furtherance of India’s obligations under the Convention and the
Protocol, wherein human trafficking has specifically been defined.

India has also ratified the SAARC Convention on Preventing and Combating Trafficking in
Women and Children for Prostitution. A Regional Task Force was constituted to implement
the SAARC Convention.

A bilateral Memorandum of Understanding (MoU) between India and Bangladesh on Bi-lateral
Cooperation for Prevention of Human Trafficking in Women and Children, Rescue, Recovery,
Repatriation and Re-integration of Victims of Trafficking has also been signed in June, 2015
as an important measure against human trafficking.

In this part of the course, we will enter into a brief analysis of the Indian legislative framework
on human trafficking. We shall also note the important developments in this regard.

2.2 HUMAN TRAFFICKING LAWS IN INDIA

Article 23 of the Indian Constitution, under Right against Exploitation, provides for prohibition
of traffic in human beings and forced labour-

(1) 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.

(2) Nothing in this article shall prevent the State from imposing compulsory service for
public purposes, and in imposing such service the State shall not make any
discrimination on grounds only of religion, race, caste or class or any of them.

Article 39 (e) and (f) of the Indian Constitution provide as follows-

(e) that the health and strength of workers, men and women, and the tender age of
children are not abused and that citizens are not forced by economic necessity to enter
avocations unsuited to their age or strength;
(f) that children are given opportunities and facilities to develop in a healthy manner
and in conditions of freedom and dignity and that childhood and youth are protected
against exploitation and against moral and material abandonment.

Some of the other important statutory laws relating to human trafficking are-

The Indian Penal Code, 1860
The IPC contains many provisions relating to human trafficking. Some of the provisions are
invoked directly and some may be invoked incidentally to the commission of crime of human
trafficking.

Section 370 provides for trafficking in persons. Section 370A provides for punishment for
exploitation of a trafficked person. Section 371 provides for habitual dealing in slaves. Section
372 provides for punishment for selling minor for purposes of prostitution. Section 373

provides for punishment for buying minor for purposes of prostitution. Section 374 penalizes
unlawful compulsory labour.

Some of the other important provisions are as following-

o Kidnapping/Abduction
o Wrongful Restraint and Wrongful Confinement
o Abetment
o Criminal Conspiracy
o Criminal Force/Assault
o Cheating
o Criminal Trespass
o Criminal Intimidation
o Rape
o Unnatural Offences
o Hurt
o Causing miscarriage
o Slavery

The Immoral Traffic (Prevention) Act, 1956
The ITPA is a special legislation dealing with offences of trafficking for commercial sexual
exploitation.

The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989
The SC/ST Act provides for punishment of offences of atrocities. This law is an important
instrument in combating human trafficking and penalizing it.

Criminal Law (Amendment) Act, 2013
Criminal Law (Amendment) Act, 2013 inserted Section 370 and 370A in the Indian Penal
Code. This amendment was introduced to honor India’s obligation under the Protocol.

Section 370 provides for trafficking of person as-

(1) Whoever, for the purpose of exploitation, (a) recruits, (b)transports, (c) harbours,
(d) transfers, or (e) receives, a person or persons, by—
First.—using threats, or
Secondly.—using force, or any other form of coercion, or
Thirdly.—by abduction, or
Fourthly.—by practising fraud, or deception, or
Fifthly.—by abuse of power, or
Sixthly.— by inducement, including the giving or receiving of payments or
benefits, in order to achieve the consent of any person having control over the
person recruited, transported, harboured, transferred or received,
commits the offence of trafficking.
Explanation 1.—The expression "exploitation" shall include any act of physical
exploitation or any form of sexual exploitation, slavery or practices similar to
slavery, servitude, or the forced removal of organs.
Explanation 2.—The consent of the victim is immaterial in determination of the
offence of trafficking.

Section 370A provides for punishment for exploitation of a trafficked person-

(1) Whoever, knowingly or having reason to believe that a minor has been trafficked,
engages such minor for sexual exploitation in any manner, shall be punished with
rigorous imprisonment for a term which shall not be less than five years, but which may
extend to seven years, and shall also be liable to fine.
(2) Whoever, knowingly by or having reason to believe that a person has been
trafficked, engages such person for sexual exploitation in any manner, shall be punished
with rigorous imprisonment for a term which shall not be less than three years, but
which may extend to five years, and shall also be liable to fine.

Bonded Labour System (Abolition) Act, 1976
The Bonded Labour System (Abolition) Act, 1976 declares any form and arrangement of
bonded labour to be a crime and stipulates the punishment for any person employing bonded
labour. This Act can be used with regard to all bonded labour including children.

Child Labour (Prohibition and Regulation) Act, 1986

The Child Labour (Prohibition and Regulation) Act 1986, is a legislative enactment that
prohibits certain forms of child labour and makes them punishable. Protection of children is
also provided for in the scheme of the Act. It is an important enactment in dealing with the
crime of child trafficking. The Act defines who a child is and specifies a list of employments
under which child labour is prohibited. The Act also provides for penalties to offenders under
the Act.

Adoption
Adoption is an important rehabilitation strategy for a ‘child in need of care and protection’.
This is also synced with the international standards embodied in the Convention on the Rights
of the Child, 1989 and the Hague Convention on Inter Country Adoption, 1993 which India is
committed to implementing. A number of children are adopted in India, whereas some children
are adopted by foreign nationals. Adoptions are to be done in legal compliance, keeping in
mind the “best interests of the child” in all cases. However, sometimes children are trafficked
for the purposes of adoption. These are illegal adoptions as the child is procured through the
use of force, fraud or purchase. Such illegal adoptions are made in violation of the legal
procedures. The Juvenile Justice (Care and Protection of Children) Act, 2015 regulates inter-
country adoption.

Transplantation of Human Organs Act, 1994
Technological progress and know-how in the area of medicine has made it possible to replace
dead or sick organs. This has increased the demand for healthy organs from donors to replace
unhealthy organs in the recipients. This has led to the rise of a new crime- trafficking for organs.
Trafficking in organs may include illegal buying or stealing. In India, the Transplantation of
Human Organs Act 1994, deals with the prevention of commercial dealings in human organs
along with regulation of removal, storage, and transplantation of human organs for therapeutic
purposes.

The Prohibition of Child Marriage Act, 2006
This Act restrains the solemnization of child marriages. The Act provides for punishment for
a variety of crimes associated with child marriages. It also has a direct provision dealing with
trafficking holding such marriages null and void under Section 12 of the Act.

Administrative Measures

Some of the important administrative measures and interventions-
• Anti-Trafficking Cell (ATC)- It was set up under the Ministry of Home Affairs (MHA)
in 2006 for better coordination between different stakeholders
• Advisories issued by the Ministry of Home Affairs
• A Comprehensive Scheme of Strengthening law enforcement response in India against
trafficking in persons through training and capacity building has been devised which
has released fund for establishment of Anti Human Trafficking Units
• Training of Trainers (TOT) workshops on Combating Trafficking in Human Beings for
Police Officers and for Prosecutors at regional, district and state level.

2.3 JUDICIAL PRONOUNCEMENTS

The Indian Judiciary has played an important role in the development of law through judicial
precedents. In the field of human trafficking, the judiciary has played an instrumental role in
covering the basic human rights of the victims under the fundamental rights in Constitution by
affording a purposive interpretation. Some of the important case laws with findings are
discussed in this section.

• Raj Bahadur v. State of W.B. 1953- this case held that traffic in human beings mean
to deal in men and women like goods, such as to sell or let or otherwise dispose of. It
would include traffic in women and children for immoral or other purposes.

• Vishal Jeet v. Union of India, 1990: this is an important case which made the
following observations-

“The causes and evil effects of prostitution maligning the society are so notorious and
frightful that none can gainsay it. It is highly deplorable and heartrending to note
that many poverty stricken children and girls in the prime of youth are taken to ‘flesh
market’ and forcibly pushed into the ‘flesh trade’ which is being carried on in utter
violation of all cannons of morality, decency and dignity of humankind. There cannot
be two opinions—indeed there is none—that this obnoxious and abominable crime
committed with all kinds of unthinkable vulgarity should be eradicated at all levels by
drastic steps.”

• Bandhua Mukti Morcha v. Union of India, 1984: In this case, the SC emphasised
upon the rehabilitation of bonded labour and directed the Government to award
compensation to released/rescued bonded labour under the provisions of Bonded
Labour System (Abolition) Act, 1976 after taking note of serious violation of
fundamental and human rights.

• Lakshmi Kant Pandey v. Union of India, 1984: this case considered the issue of child
welfare and said that the welfare of the entire community, its growth and development,
depend on the health and well-being of its children. It regarded children as a ‘supremely
important national asset’.

• M.C. Mehta v. State of T.N., 1996: This case took note of violation of fundamental
rights in cases of child labour.

• Gaurav Jain v. Union of India, 1997: the Supreme Court passed an order directing
the constitution of a committee to make an in-depth study of the problems of
prostitution, child prostitution, and children of prostitutes, to help evolve suitable
schemes for their rescue and rehabilitation.

2.4 CONCLUSION

‘Trafficking in persons’ consists of the following, as per the 2000 UN Protocol:
• the action of recruitment, transportation, transfer, harbouring on receipt of persons
• by means of the threat or use of force, coercion, abduction, fraud, deception, abuse of
power or position of vulnerability or giving payments or benefits to a person in control
of the victim for the purposes of exploitation, which includes exploiting the prostitution
of others, sexual exploitation, forced labour, slavery or similar practices, and the
removal of organs.

India signed the UN Protocol on 12 December, 2002. The Constitution of India prohibits
trafficking in human being and makes it a fundamental right. Freedom from exploitation is also
the central theme of the Directive Principles of State Policy under the Constitution.

In this section, we have briefly discussed the important constitutional provisions, statutory
enactments and judicial pronouncements relating to human trafficking in India.