November 29, 2020

Human Trafficking in India And Corona

Abstract

Human trafficking is the world’s third prominent offence. Human trafficking means exploitation of person either sexually or economically. Its refers to buying or selling of person for immoral purposes by using threat, inducement and lure. This article represents many forms of human trafficking and the laws which govern and prohibit such an offence like Constitution of India, Indian Penal Code, POCSO Act and many more. It also presents the challenges faced due to the COVID-19 pandemic.

Keywords: Human Trafficking, Exploitation, Prohibition, Covid-19, Pandmic.

Introduction

Trafficking refers to the economic and sexual exploitation of humans by their movement from one place to another through force, threat, inducement or deception. Human trafficking is trading humans mostly for the purpose of forced labour, sexual slavery, commercial sexual exploitation or extraction of organs. It is a crime which violates human rights by means of exploitation and coercion. Human trafficking is the world’s third largest organised crime after drugs and the arms trade.

Children are the future of any country and sexual exploitation of the children is worst than any other offence against them. Article- 51-A(e) of the Constitution of India imposes the duty on every citizen of India in mandatory form which says that “it shall be the duty of every citizen of India, to renounce practices derogatory to the dignity of women.”[1] But in practice the position is different from the spirit of the Constitution. Children and women are the most vulnerable for human trafficking. There is high demand for children in both sex and labour trafficking, as they are easy to handle, resilient and vulnerable for any type of exploitation and can be paid much less.

Basically, there are three types of trafficking and that is trafficking for commercial sexual exploitation, trafficking for exploitative labour and trafficking for other types of exploitation including organ trade. However, on ground, all are mixed up.

Human Smuggling v. Human Trafficking:

Most oftenly, Human trafficking is confused with human smuggling. According to U.S. Immigration and Customs Enforcement (ICE): “Human trafficking involves exploiting men, women, or children for the purposes of forced labor or commercial sexual exploitation. Human smuggling involves the provision of a service—typically, transportation or fraudulent documents—to an individual who voluntarily seeks to gain illegal entry into a foreign country.”[2] Moreover, consent is immaterial in human trafficking as it is not informed consent while in human smuggling consent is a material fact. The smuggled person is a part of the problem, as he/she agrees to be smuggled. In contrary, the trafficked person is unaware of the fact that he/she is being trafficked.

Causes of Human Trafficking:

There are some conditions that create a toxic cocktail of vulnerability that makes it easier for traffickers to exploit their victims. These are poverty, lack of education, immigration policy, social and cultural conditions, fractured families and lack of good job opportunities and many more. Now let’s consider how they are causing human trafficking:

· Poverty: Hunger and lack of money is the prime reason for anyone to be a criminal or force them to suffer the wrong. So poverty is the utmost reason for any person to become trafficker. Poverty drives the parents to sell their children for slavery or prostitution. It brings null chances to get education and becoming aware of their rights. Poor people are the easy targets for traffickers as they are offered money.[3]

Even poor people consider sex as their mode of entertainment as for them there is no other means of enjoyment which leads to sex trafficking of women in their own house by their own relatives.

· Lack of education: Lack of education brings basically two outcomes which can cause people to be at greater vulnerability. The first one is that they didn’t get proper wage work and secondly, they don’t know their rights and that results in trafficking.

· Social and cultural practices: social and cultural practices are another major causes of human trafficking. At many places, bonded-labour is considered as an effective and acceptable way to pay off debts. People are slaves from generation to generation to their masters. This practice is common in Mauritania. In Uzbekistan, forced labour is institutionalized where adults and children are forced to work in the cotton field until the cotton is harvested.[4] In such situations, people take it as normal to be slave as they have never thought of seeing the second face of the coin i.e. they are unaware of their rights.

Human Trafficking and Law in India:

Constitutional Provisions:

Trafficking in human beings is prohibited under Article-23 of the Constitution of India. ‘Traffic in human beings’ means selling and buying men and women like goods and includes immoral traffic in women and children for immoral or other purposes.[5] Though “Slavery” is not expressly mentioned in Article-23, it is included in the expression ‘traffic in human being’.[6]

Article-23 reads: “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 purpose, 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-23 protects the individual not only against the State but also private citizens. It imposes a positive obligation on the State to take steps to abolish evils of “traffic of human beings” and beggar and other similar forms of forced labour wherever they are found. Second part of this Article declares that any contravention of this provision shall be an offence punishable in accordance with law. It prohibits the system of ‘bonded labour’ because it is a form of force labour within the meaning of this Article.[7]

Legislative Provisions:

Indian Penal Code, 1860: Indian Penal Code, 1860 under its Section 370-374 deals with prohibition of trafficking for immoral and unlawful purposes. Section- 370 defines what trafficking amounts to. According to this section, “Whoever, for the purpose of exploitation, (a) recruits, (b) transports, (c) harbors, (d) transfers, or (e) receives, a person or persons, by (i) using threats, or (ii) using force, or any other form of coercion, or (iii) by abduction, or (iv) by practicing fraud, or deception, or by abuse of power, or (vi) 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, harbored, transferred or received, commits the offence of trafficking.”[8]

This section is inserted by the Criminal Law Amendment Act, 2013 in the place pf previous section with the recommendation of Justice Verma Committee after the tragic Delhi gang-rape incident. This Act also inserted Section-370 A. Vide the Criminal Law (Amendment) Act 2013 (Act 13 of 2013), the entire section has been changed so as to enlarge the scope of the offence and include within its purview not just the mischief of slavery, but trafficking in general – of minors as also adults, and also forced or bonded labour, prostitution, organ transplantation and to some extent child-marriages.[9]

This section expressly provides under its explanation 2 that the consent is immaterial in the offence of trafficking.[10] It in its further sub-sections provides for the punishment of trafficking in its all forms as well as in its aggravated form. They can be summarised as:

1.Trafficking of persons – 7 to 10 years + Fine

2.Trafficking of more than one person – 10 years to life imprisonment + Fine

3.Trafficking of minor- 10 years to life imprisonment + Fine

4. Trafficking of more than 1 minor- 14 years to life imprisonment + Fine

5. Persons convicted of the offence of trafficking of minor in more than one occasion- Imprisonment of Natural-life + Fine

6. Public Servant or police officer involved in trafficking of minor-Imprisonment for Natural -Life + Fine.

Section- 370-A deals with sexual exploitation of minor as well as major and endorses a punishment of 5 years to 7 years+Fine (in case of minor) and 3 years to 5 years+Fine (in case of major).

Indian Penal Code, 1860 through its Section-171 penalises the person who is involved in habitual dealing in slaves i.e. whoever habitually imports, exports, removes, buys, sells, trafficks or deals in slaves, shall be punishable with imprisonment for life or upto 10 years+Fine.

Section- 372 and 373 prohibits trafficking of minors for its another major immoral purpose i.e. prostitution or illicit intercourse and make it punishable with an imprisonment upto 10 years+Fine. It includes buying, selling, hiring or obtaining possession of person otherwise.

Section-374 deals with another purpose of human trafficking and i.e. forced labour and comments that the labour against the will of a person is an offence and shall be punishable with imprisonment upto 1 year or Fine or both.[11]

The Immoral Traffic (Prevention) Act, 1956 (ITPA): ITPA is the premier legislation for prevention of trafficking for commercial sexual exploitation. Under the Act, trafficking a minor (below 16 years) for prostitution is punishable with imprisonment of 7 years up to life imprisonment, and fine. ITPA, though a major reform in the area of prevention of human trafficking but has a negative drawback that it talks about a women as a prostitute who would be arrested for soliciting with imprisonment upto one year but the pimp only for three months. It’s a major discrimination on the basis of sex.

Protection of Children from Sexual Offences (POCSO) Act, 2012: The Act which came into force on 14 November, 2012 is a special law to protect children from sexual abuse and exploitation.

The Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018: The Bill which was introduced in Lok Sabha on July 18, 2018 and passed on July 26, 2018 creates a law for investigation of all forms of trafficking and rescue, protection and rehabilitation of trafficked victims. Bill provides for establishment of such authorities at national, state and district level and also the establishment of anti- trafficking units for the proper working in this area.[12]

Challenges Faced Due to COVUD-19:

The outburst of the insidious pandemic Covid-19 has shook the whole world. This pandemic has affected the people in all the spheres and make them quarantine. While according to many views due to lockdowns the offences must have reduced in society but this is not the case with human trafficking and its various forms. Following are the outcomes:

· It increases child sexual abuse at home.

· Increased number of online child abuse.

· High demand in pornography.

· Suppression of exploited and frustrated victims who are not able to communicate with peers.

· Due to no real outside world, everyone is totally dependent on internet which increase the scope of abuse.

· Traffickers make their best in disaster.

Suggestions:

To overcome this rising issue, following can be done:

  • Identify the victims and vulnerable and help them in their prevention.
  • Inform and help police and prosection in identifying hotspots.
  • Locate missing children and help them in their rehabilitation.
  • Blow the whistle when identify any trafficker.
  • Help to establish the anti-human trafficking units effective.
  • Spread awareness among people at family level as well as social level.

[1] Article-51-A(e), Constitution of India

[2] Available at: https://www.ice.gov/sites/default/files/documents/Report/2017/CSReport-13-1.pdf

[3] Available at: https://www.humanrightscareers.com/issues/10-causes-of-human-trafficking/

[4] Ibid

[5] Raj Bahadur v. Legal Remembrancer, AIR 1953 Cal. 522.

[6] Dubar Goala v. Union of India, AIR 1952 Cal. 496.

[7] Dr. J.N. Pandey, Constitutional Law of India, p.g. 365, (Central Law Agency, 54th Edition, 2017)

[8] Section-370, Indian Penal Code, 1860

[9]Available at: http://www.legalserviceindia.com/legal/article-171-human-trafficking-prevention-under-section-370-of-ipc-1860.html
[10] Explanation:2 to Section-370, Indian Penal Code, 1870.
[11] Prof. S.N. Mishra, Indian Penal Code, p.g. 732-733 (Central Law Publications, 20th Edition, 2017).
[12]Available at: https://www.prsindia.org/billtrack/trafficking-persons-prevention-protection-and-rehabilitation-bill-2018#:~:text=ITPA%3A%20Trafficking%20a%20minor%20(below,to%2010%20years%2C%20and%20fine

Author Details: – Ankita Shukla is a student at Babasaheb Bhimrao Ambedkar (Central) University.

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