Human trafficking laws in India

January 11, 2024January 11, 2024Human RightsAdvocate TanwarNo Comments

Over the years, laws have been constantly changing to combat this horrible crime. The Indian government has taken a number of actions to improve law enforcement operations and fortify the legal system to combat human trafficking. The main law that forbids trafficking in India for sexual exploitation is the Immoral Traffic (Prevention) Act, 1956, or ITPA.

Similar to slavery, human trafficking entails the exploitation of people for financial or personal advantage. To get commercial sex, debt bondage, or forced labour, the victims are exposed to fraud or coercion.

In the Trafficking Protocol, the United Nations Office for Drugs and Crime (UNODC) defines human trafficking as “the recruitment, transport, transfer, harbouring or receipt of a person by such means as abduction, fraud or deception for exploitation, or the threat or use of force or other forms of coercion.” According to UNODC estimations,

28% are children, 21% are men, and 51% of trafficking victims are recognised as women.
Women make up 72% of those who are abused in the sex industry.
Men made up 63% and women 37% of the traffickers that were found.
Domestic trafficking occurs within national borders for 43% of victims.

The UNODC states that human trafficking consists of three fundamental components: the act, or what is done, the means, or how it is done, and the purpose, or why it is done. There is a widespread misperception that moving people across borders is also a necessary component of human trafficking; nonetheless, moving people inside a nation or even a neighbourhood is considered trafficking. Nonetheless, cross-border transportation is necessary for the operation of human smuggling.

Types of human trafficking

The three main categories of human trafficking are forced labour, domestic servitude, and sex trafficking.

Sex Trafficking It is the exploitation of people for sexual purposes for profit, such as prostitution, sex tourism, and pornography. The illegal industry of sex trafficking is driven by the market and operates on the concepts of supply and demand. An estimated 4.5 million people worldwide are victims of sex trafficking. The abuse and exploitation of sex trafficking victims frequently result in physical harm, psychological anguish, sexually transmitted diseases such as HIV/AIDS, and social exclusion.
Forced labour Forced labour, or unfree labour is when people are forced to work or provide services, sexual or otherwise, against their will. Threats of punishment, incarceration, assault, fraud, or coercion can all be used to produce this. The industries that use forced labour most heavily include agriculture, mining, fishing, textile, and construction. These workers frequently receive pitiful or no pay. Particularly prevalent is forced labour among marginalised ethnic groups such as Dalits. According to estimates from the International Labour Organisation (ILO), over 20.9 million victims are compelled to work.
Domestic servitude is when the freedom of domestic helpers like nannies, maids, or live-in help is compromised to such an extent that it amounts to enslavement. The situation of domestic assistants already presents a special, adverse, and vulnerable setting because of the absence of legal assistance and the isolating settings that are easy to establish in private residences. The offender can exacerbate the situation by setting up a workplace where he can take advantage of the victim and have total control over them. To exercise such power, one can use a variety of techniques.

First of all, if the victim is an immigrant, the employer has the right to remove their travel and identity credentials, leaving them incredibly dependent on them. Second, by preventing the victim from leaving the house, the offender can further isolate them from friends and family. Threats and physical harm can be used to do this.

According to estimates from the International Labour Organisation (ILO), 80% of domestic workers worldwide are women and girls, and there are at least 67 million men and women.
Other sub-types
Aside from child labour, other forms of human trafficking include commercial trading, prostitution, drug couriering, and labour-intensive industries including agriculture and raw material extraction. Forcible marriage situations may potentially qualify as human trafficking. Organ trafficking is another type of trafficking, which is often carried out by the trafficker using one of the following three strategies:
- By forcing the sufferer to have their organs removed and sold;
- By getting the victim’s permission and making up a payment promise in exchange; or
- by taking the organs out and selling them without the victim’s consent, all under the guise of treating a different sickness.

Individuals who are susceptible

Human trafficking can affect everyone, regardless of colour, gender, sex, class, or creed. However, some groups within society are more vulnerable than others, as listed below:

People who are unemployed and living in povertyTraffickers frequently take advantage of those who are poor by lending money or providing fictitious high-paying employment, leaving their victims deeply in debt. The victims agree to these dangerous ideas in the hopes of improving their lives and being able to support their families.
Because of language barriers and lack of acquaintance with the host country, immigrants—legal and illegal—are more susceptible to the devious and coercive tactics of traffickers. Traffickers use threats to denounce undocumented immigrants to the police as a further form of blackmail and control.
Youngsters Because of their youth, gullibility, and innocence, children are seen as easy targets for human trafficking. You can easily trick people with falsehoods and meaningless promises.
teenage runaways, homeless youth, and teenage troublemakers at homeAdolescents who experience abuse and neglect at home are frequently exposed to the “grooming” process, in which the abuser separates the victim from their friends and family, gathers personal information about them, and wins their trust by establishing a relationship that is typically romantic. After achieving this, the offender takes advantage of the victim’s confidence by abusing it. Since most runaway adolescents already lack any form of support structure, it is easier to carry out the grooming process with them.
Those who have experienced trauma and abuse in the past are particularly vulnerable to predators because of their low self-esteem and the feelings of worthlessness and helplessness they carry. Victims of violence or abuse have already suffered emotional harm.

Laws against human trafficking in India

The various laws that address the various forms of trafficking are as follows: (i) Indian Penal Code, 1860 The Indian Penal Code, 186 is the primary law in India that addresses human trafficking.

The important sections are as follows:

General Provisions
Section 347: A person faces a maximum three-year prison sentence and a fine if they unjustly imprison someone else in order to extract money from them or force them to commit crimes.

Section 357 – A person may be imprisoned for up to a year or fined up to one thousand rupees for using assault or criminal force to illegally confine someone.

Section 363 – Whoever kidnaps a person from India or from lawful guardianship shall be punished with imprisonment of up to seven years and will also be liable to be fined.

Section 365 – Whoever kidnaps or abducts with intent secretly and wrongfully to confine a person, shall be punished with imprisonment of up to 7 years along with a fine.

Section 370 This section defines the offence of trafficking as:
‘Whoever, for the purpose of exploitation, (a) recruits, (b) transports, (c) harbours, (d) transfers, or (e) receives, a person or persons, by:
The following actions are considered trafficking: (1) using threats; (2) using force or any other form of coercion; (3) abduction; (4) practicing fraud or deception; (5) abusing power; and (6) using inducement, including the giving or receiving of payments or benefits, in order to obtain the consent of any person having control over the person recruited, transported, harboured, transferred, or received.

This section defines exploitation as forced organ removal, slavery, servitude, and physical or sexual exploitation. It doesn’t matter if the victim gave permission for any of these actions. If more than one person is trafficked, the punishment increases to ten years in jail, with the possibility of life imprisonment. Otherwise, the offence is punishable by a fine and imprisonment for a term ranging from seven to ten years. This section defines exploitation as forced organ removal, slavery, servitude, and physical or sexual exploitation.

According to Section 506, criminal intimidation carries a maximum two-year prison sentence, a fine, or both.

Special provisions
Sex trafficking
Section 354-5A- Any man who engages in the following offences:

physical interaction and approaches that involve explicit and unwanted sexual advances; or
a solicitation or demand for sexual favours
displaying pornography against a woman’s wishes

may be fined, sent in jail for a maximum of three years, or both.
Section 376: The penalty for rape is life in prison with a minimum sentence of ten years, a maximum of life in prison, a fine, or both.

Forced marriage

Section 366 – Whoever kidnaps, abducts or induces a woman to compel her marriage shall be punished with imprisonment of up to ten years along with a fine.

Minors

Section 366-A ▻ The procurement of a minor girl is subject to a fine and a maximum ten-year prison sentence.
Section 366-B Importing a girl (under the age of twenty-one) from another country is illegal and can result in a fine and up to ten years in prison.
Section 370(4) states that if a single minor is the victim of the offence, the offender faces a minimum ten-year sentence, a maximum of life in prison, and a fine.
Section 370(5) states that if more than one minor is involved in the trafficking offence, the offender faces a minimum ten-year sentence, a maximum of life in prison, and a fine.
Section 370(6) – A person facing multiple convictions for the trafficking of minors faces life in prison and a fine in addition to their sentence.
Section 372 – A person faces a maximum ten-year prison sentence and a fine if they sell kids for prostitution, illicit sexual relations with another person, or any other illegal or immoral reason.

Slavery
Section 371 Customary imports, exports, trafficking, purchasing, selling, and other activities involving slaves are punishable by life in jail or a maximum of ten years in prison, as well as a fine.

Section 374 Forced employment that is not authorised and without the consent of the employee may result in a fine, a year-long jail sentence, or both.

Aiding human trafficking

Section 368 Anyone who falsely conceals or confines a kidnapped or abducted person will face the same penalties as the person who kidnapped them, which include a fine and up to ten years in jail.
Section 370-A (1): Anyone who, in any way, solicits a juvenile who has been trafficked for the purpose of sexual exploitation faces a minimum sentence of five years in jail, with the possibility of a seven-year sentence, as well as a fine.
Section 370-A(2): Whoever engages a trafficked person for sexual exploitation in any manner shall be punished with 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 a fine.
Section 373: Whoever buys minors for the purpose of prostitution shall be punished with imprisonment for a term that may extend to ten years and shall also be liable to fine.

(ii) Immoral Traffic (Prevention) Act 1956

This Act deals with human trafficking for the purposes of sexual exploitation.

Section 3 The punishment for keeping a brothel shall be imprisonment for a term of not less than one year and not more than three years along with fine which may extend to two thousand rupees.

Section 4 The punishment for living on earnings of prostitution shall be imprisonment for a term of not less than one year and not more than three years, also with fine which may extend to two thousand rupees. If the earnings are from prostitution of a minor the punishment shall be, shall be punishable with imprisonment for a term of not less than seven years and not more than ten years.

Section 5 Procuring, inducing or taking person for the sake of prostitution with or without their consent shall be punishable with imprisonment for a term of not less than three years and not more than seven years and also with fine which may extend to two thousand rupees and if it is committed against the will of any person, the punishment of imprisonment for a term of seven years shall extend to imprisonment for a term of fourteen years.

Section 6 Detaining a person in premises where prostitution is carried on shall be punished with imprisonment for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine.

In addition to the aforementioned offences, this Act also imposes penalties for seduction or solicitation with the intent to commit prostitution, prostitution within or near public areas, and seduction of an inmate.

(iii) The Constitution of India, 1949

Article 23: Human trafficking and forced labour are illegal activities that carry legal penalties.
Article 24 prohibits children under the age of fourteen from working in hazardous jobs, such as mines or factories.

(iv) The Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018

The Bill provides for the establishment of investigation and rehabilitation authorities at the district, state and national level. Anti-Trafficking Units will be established to rescue victims and investigate cases of trafficking. Rehabilitation Committees will provide care and rehabilitation to the rescued victims.

The Bill specifies penalties for various offences including for (i) trafficking of persons, (ii) aggravated trafficking (such as, for bonded labour and begging), and (iii) promotion of trafficking.

Whether the burden of proof on an owner of premises is a violation of Article 21
A number of particular laws have been passed in relation to the trafficking of women and children, including The Transplantation of Human Organs Act of 1994, The Prohibition of Child Marriage Act of 2006, The Bonded Labour System (Abolition) Act of 1976, and The Child Labour (Prohibition and Regulation) Act of 1986.

Landmark judgements against human trafficking in India

People’s Union for Democratic Rights v. Union of India, (1982) 3 SCC 235
In this judgment, the honourable Supreme Court defined forced labour, while discussing the scope of Article 23 of the Constitution of India, stated:
The word force must therefore be construed to include not only physical or legal force but also force arising from the compulsion of economic circumstances which leaves no choice of alternatives to a person in want and compels him to provide labour or service even though the remuneration received for it is less than the minimum wage.
Prerna v. State of Maharashtra: 2003 (2) Mah.L. J. 105
The Bombay High Court established seven rules in this ruling that must be followed to protect child victims and provide instructions for the recovered child’s rehabilitation.
1. Under the definitions provided by Sections 2(1) and 2(d) of the Juvenile Justice (Care and Protection of Children) Act, 2000, no magistrate has jurisdiction over an individual under the age of eighteen. This includes both juveniles in legal trouble and children in need of care and protection. When someone appears to be younger than eighteen, the Magistrates have an immediate obligation to investigate their age. If it is discovered that the individual in question is under the age of 18, the magistrate is required to forward the matter to either the Juvenile Justice Board or the kid Welfare Committee, depending on whether the individual is a juvenile in trouble with the law or a kid in need of care and protection.
2. Under Section 17(2) of the Immoral Traffic (Prevention) Act, 1956, individuals who have been rescued under its auspices or who have been discovered soliciting in a public place must have their ages verified the first time they appear before a magistrate. If it is determined that the individual in question is younger than eighteen, the magistrate is required to forward the matter to either the Juvenile Justice Board or the Child Welfare Committee, depending on whether the individual is a juvenile in need of protection or care or both.
3. Any young person found begging in a public setting or saved from a brothel under the Immoral Traffic (Prevention) Act of 1956 should not be discharged until the Probation Officer has finished investigating.
4. The rescued juvenile must be declared suitable by the Child Welfare Committee to be in the care and custody of a parent or guardian before the said juvenile can be transferred to that parent or guardian.
5. The Juvenile Justice (Care and Protection of Children) Act, 2000’s procedures shall be followed for the rescued child’s rehabilitation if the parent or guardian is determined to be unfit to provide care and custody.
6. When a juvenile is brought before the Child Welfare Committee, either because they were rescued under the Immoral Traffic (Prevention) Act, 1956, or because they were discovered soliciting in a public area, no advocate may appear on their behalf. The only people who should be allowed to address the Child Welfare Committee on behalf of such a juvenile are their parents or guardians, either directly or through a representative they have designated for that reason.
7. An advocate appearing for a pimp or brothel keeper is barred from appearing in the same case for the victims rescued under the Immoral Traffic (Prevention) Act, 1956.
Association of India v. Bachpan Bachao Andolan 2011 SCC (5) 1
In this instance, the Indian solicitor general argued that each state government should appoint an official to oversee the enforcement of child-related legislation. It was decided that no kid should be denied the fundamental rights protected by the Indian Constitution and that this would lead to child abuse and trafficking

In summary
The idea of human trafficking remains vague and unclear in the minds of many people even today. In order to raise awareness of it, the government, the media, and educational institutions should all get involved. It is crucial to educate the most vulnerable members of society.

Although there are various anti-human trafficking laws in India, no single comprehensive law that addresses all forms of human trafficking and victim protection exists.

Adv.Khanak Sharma