Analyzing Paradigm Shifts in Indian Trafficking Legislations-Urgent Need for Further Reforms
Author: Tamanna Gupta
RGNUL, Punjab.
ISSN: 2581-8465
Abstract
Trafficking is a serious crime that leads to the transgression of human rights. Trafficking is a crime against humanity and is blind to factors such as gender, age, race, color, religion, or region. While trafficking is a problem that affects societies globally, in recent times India has become a hotbed for incidences of trafficking, which have seen a steep increase decades after decades. Trafficking in India, particularly, trafficking of women, is a problem of vast and severe proportions, which leads to the violation of rights of women physically, sexually, emotionally, mentally, and commercially. Women are exploited for illicit intercourse and commercial gains.
India has a comprehensive set-up to address the issue of trafficking, with provisions in the Indian Penal Code, the Indian Constitution, and other legislation to combat the issue. To address the severe and grave issue of trafficking, the parliament recently enacted the Trafficking of Persons (Prevention, Protection, and Rehabilitation) Bill 2018, to address the shortfalls and shortcomings of the Immoral Traffic Prevention Act (1956), the maiden legislation to curb trafficking in India. While this is a step in the right direction, it fails to curb the widespread prevalence of practices related to trafficking in the country. This article analyzes the legislations, compares the provisions, and further suggests changes that still need to be addressed in order to combat the problem of trafficking.
Introduction-
The United Nations defines human trafficking as:
“The recruitment, transportation, transfer, harboring or receipt of persons, by means of the 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 the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.”[1]
In general terms, human trafficking refers to soliciting/requesting/receiving/transferring/transporting or harboring a person/persons, with the motive of exploitation in mind. Section 370 of the Indian Penal Code, titled “Trafficking of person”, states the components that constitute trafficking. It states that anyone who –
- Recruits/transports/harbors/transfers or receives
- Any singular person or multiple persons,
- For the purposes of exploitation,
Such person shall be guilty of trafficking. It also states that threats, fraud, abuse of power, and other factors must be made out for the offender to categorize the offence as “trafficking”.[2]
International Framework for Protection from Trafficking-
The Universal Declaration of Human Rights (1948) under Article 4 states that no one shall be held as a slave, and also prohibits slave trade. The UN Convention against Transnational Organized Crime (2000), supplemented by the Palermo Protocol, lays down guidelines to combat the problem of trafficking. The International Covenant on Civil and Political Rights (1976) prohibits a number of practices, including trafficking. The Convention on Elimination of all Forms of Discrimination against Women (CEDAW) further lays down actions signatory states must take, especially with regards to trafficking of women for the purposes of prostitution.
Indian Framework for Protection from Trafficking-
India has a comprehensive framework laid down to protect its citizens from trafficking.
Indian Constitution- Article 23 of the Indian Constitution provides for protection from trafficking and forced labor, stating that both are offences under the eyes of law.[3]
Indian Penal Code-The Indian Penal Code deals with the issue of trafficking and its punishment from Section 370-374.
Acts of the Parliament- TheImmoral Traffic Prevention Act (1956) further amended by The Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill 2018.
Indian Constitution-
Article 23 of the Indian Constitution provides for protection from trafficking and forced labor, stating that both are offences under the eyes of law.[4]
Indian Penal Code-
Section 370, titled “Trafficking in person”, lays down the broad elements which constitute trafficking. It states that anyone who recruits/transports/harbors/transfers or receives any singular person or multiple persons, for the purposes of exploitation, shall be guilty of trafficking. It also states that threats, fraud, abuse of power, and other factors must be made out for the offender to categorize the offence as “trafficking”.
Section 370(1)-Article 370(6) lays down the punishments meted out in different cases made out, depending upon the following factors[5]–
- Age of person trafficked-Whether it was a minor/adult
- Number of times the offence of trafficking has been made out-whether once or more than once.
- Involvement of persons in authority-Involvement of Police/Public servants increases the quantum of punishment.
| Section (IPC) | Ingredients | Punishment |
| 370(1) | Trafficking of Person | 7-10 years + fine |
| 370(2) | Trafficking of more than one person | 10 years-Life Imprisonment + Fine |
| 370(3) | Trafficking of minor | 10 years-Life Imprisonment + Fine |
| 370(4) | Trafficking of more than one minor | 14 years-Life Imprisonment + Fine |
| 370(5) | Trafficking minor+ more than one trafficking of minor | Life Imprisonment, which extends to the natural life of the person |
| 370(6) | Trafficking by Public Servant, Police Officer | Life Imprisonment, which extends to the natural life of the person |
Section 371 provides for the punishment for habitual dealing of slaves. It states that this offence can invoke a punishment of life imprisonment or ten years imprisonment with fine. However, the Criminal Law (Amendment) Act, 1952 banned slavery in India. Hence, the scope of Section 371 is now reduced to academic purposes.[6]
Section 372 and Section 373 deal with selling and buying of minor for the purposes of prostitution. Both are punishable for a period of up to 10 years and fine. The following ingredients have to be met-
- A person, with the requisite intent/knowledge
- Sells, hires, or dispossess a person (Section 372)[7] or buys, hires, or takes in possession a person (Section 373)[8]
- Knowing that person is a minor, or under the age of 18
- Having knowledge that such minor shall be used for the purposes of prostitution or illicit intercourse.
When these conditions are met, Section 372 or 373 can be invoked, depending on the facts of the case.
Section 374 of the Penal Code deals with unlawful compulsory labor, stating that if a person is made to work against his or her will, a punishment of ten years with fine can be imposed.[9]
Acts of the Parliament-
Comparative Analysis-Immoral Traffic Prevention Act (1956) vis-a-vis The Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill 2018-
The Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill 2018 was conceived to address the inadequacies in the maiden legislation, Immoral Traffic Prevention Act (1956). While the act of 1956 had provided a broad framework, it lacked in efficacy, and hence several modifications were made in the act. Both the acts can be compared on the following basis-
| Sr. No. | Aspect | ITPA 1956 Section (S) | TOP-PPR (2018) |
| 1. | Courts | S 22A | S46-50 |
| 2. | Search of Premises | S 15 | S 15 |
| 3. | Protection, Rehabilitation of Victim | S 16, 17 | S 21-25 |
| 4. | Compensation to Victim | By the Court | S 27-28 |
| 5. | Closure/Forfeit of Property involved | S 18 | S 29 |
| 6. | Bureau | Not Established | S 3-10 |
- Courts
While Immoral Traffic Prevention Act (1956) designates the setting up of “Special Courts”, which can be done either by the state, under S 22A of the act, or the Center, under S 22AA of the act, in order to ensure a speedy trial, Trafficking of Persons (Prevention, Protection, and Rehabilitation) Bill 2018 states that any Court of Sessions can be selected to be a “Designated Court”, wherein every district can have one designated court.
The “Designated Court” shall be provided with Special Public Prosecutors, who are to be appointed by the concerned state government, and the act also states that the trial in such a court is to be completed within 1 year of the date of the complaint, and appeals shall be taken within 60 days of the judgment.
- Search of Premises
The Immoral Traffic Prevention Act (1956) has provided for the appointment of “Special Police Officer/Trafficking Police Officer”, as the case may be, the Trafficking of Persons (Prevention, Protection, and Rehabilitation) Bill 2018 provides for the appointment of “Anti Trafficking Police Officers”.
Both the acts grant power to the officer to conduct a search of the premises alleged to be used as trafficking haven/brothel etc. Both acts also give power to the officers to conduct the search without the requirement of a warrant. While the Immoral Traffic Prevention Act (1956) states that “reasonable grounds” must exist in order to conduct a search without a warrant, the Trafficking of Persons (Prevention, Protection, and Rehabilitation) Bill 2018 states that police may conduct the search sans warrant if “imminent danger to life” is apprehended.
- Protection, Rehabilitation of Victim
The Immoral Traffic Prevention Act (1956) states that a magistrate can direct the removal of a person from premises if there is reason to believe that the person is in adverse circumstances. While Section 16 of the act provides for the rescue of person, Section 17 lays down provisions for the custody of a person rescued, wherein it is stated that the person has to be produced in front of the nearest magistrate, after which the person can be sent to safe custody.
The Trafficking of Persons (Prevention, Protection, and Rehabilitation) Bill 2018 lays down the structure for the foundation of “Anti Trafficking Committees” to send rescued persons to the nearest Protection/Rehabilitation homes, both conceptualized under the new act.
- Compensation to Victim
The Immoral Traffic Prevention Act (1956) has no provision directing payment of compensation to the victim, however, the courts designated under the act can provide compensation to the victim, depending on the facts and circumstances of the case.
The Trafficking of Persons (Prevention, Protection, and Rehabilitation) Bill 2018 states that the “Designated Courts” may award compensation to the victim, depending on the following circumstances-
- Application for compensation must be made by the victim.
- Compensation must be granted by court within 30 days.
- Compensation must be paid to victim within 60 days.
- Closure/Forfeiture of Property
The Immoral Traffic Prevention Act (1956) states that a magistrate, upon receipt of information, can direct closure of premises being run as a brothel, giving a week’s time for eviction. The Trafficking of Persons (Prevention, Protection, and Rehabilitation) Bill 2018 states that the court may further attach such property, and funds generated from the sale/pledge/hypothecation of property can be used in rehabilitation funds.
- Bureau
The Immoral Traffic Prevention Act (1956) does not provide for the setting up of the Anti-Trafficking Bureau, while the Trafficking of Persons (Prevention, Protection, and Rehabilitation) Bill 2018 provides for the setting up of “Anti Trafficking Police Units” or Anti Trafficking units.
Need for Further Reforms-
It can be easily inferred that Trafficking of Persons (Prevention, Protection, and Rehabilitation) Bill 2018 provided a wide berth for reforms, especially by making sweeping changes in the provisions of Immoral Traffic Prevention Act (1956) by providing for fast track disposal of cases, compensation, setting up anti-trafficking bureaus, state, and national designated courts, etc. However, both the legislations missed out on several important aspects, which further need to be remedied-
- Term of Punishment for Offenders-
The Immoral Traffic Prevention Act (1956) provides punishments for several offenses as laid down under the act. Section 5 of the act states that if any person attempts to or successfully procures, by any means, a person for the purposes of prostitution, the person shall be punished with a rigorous imprisonment for not less than 3 years, which can be extended up to 7 years of imprisonment, and fine. Section 8 states that if a person sways or seduces another for the purposes of prostitution, such a person shall be punished for a paltry 6 months, with a fine, which may extend up to five hundred rupees.
Compared to this, the provisions of IPC provide for a minimum term of 7 years under Section 370(1) of the Code. A person being convicted under the Immoral Traffic Prevention Act (1956) hence walks away with a slap on the wrist, as compared to a person convicted under the Code. This severely undermines the efficacy of the Immoral Traffic Prevention Act (1956) and convictions being made under the act are tantamount to giving offenders a free pass. The provisions of the Immoral Traffic Prevention Act (1956) must be amended to provide for longer terms under the act.
- Quantum of Compensation-
While the Immoral Traffic Prevention Act (1956) did not have any specific provision with regards to compensation, the Trafficking of Persons (Prevention, Protection, and Rehabilitation) Bill 2018, states that the “Designated Courts” may award compensation to the victim, providing an application for the same is made by the victim. However, it has been observed that victims often fail to avail of this remedy, and even upon application, the processing and granting of compensation is a long pronged and much-delayed process, though the act states that compensation must be provided within two months.
The government, both at the state and national level, should set up a “Victim Compensation Fund”, from which the government shall grant a minimum amount of compensation and relief to the victims, rather than passing the buck to the offender. The offender shall also provide for relief, depending upon the facts and circumstances of the case, and both the amounts should be granted to the victim. The government should not shy away from its responsibility to compensate such victims.
- Skill Training and Job Opportunities for rehabilitated victims –
Several Indian statutes, including the Prisons Act 1894, recently amended by the Prisons (Amendment) Bill, 2016, provide for skill training within Indian prisons, as well as the right to be remunerated for the same. However, neither the Immoral Traffic Prevention Act (1956) nor the Trafficking of Persons (Prevention, Protection, and Rehabilitation) Bill 2018 has any such provisions.
It is imperative to inculcate provisions for skill training and remuneration because victims of trafficking are generally deprived of formal education during the period of their captivity, and in cases where women are trafficked for the purposes of prostitution, they do not have the requisite skill set for starting a white-collar job, due to missing on schooling and higher education. Opportunities must be created to help rehabilitate the victims with a steady source of income post their captivity. Efforts must be made to integrate the victims in the normally functioning society so that their life is not impaired for a long period of time due to being trafficked.
Conclusion
With the passage of Trafficking of Persons (Prevention, Protection, and Rehabilitation) Bill 2018, the parliament took a step in the right direction. The act introduced several pioneering reforms, in line with international conventions and obligations, in order to curb the contentious issue of trafficking. However, the act is plagued by several lacunae, which needs to be further reformed. Game-changing reforms are required to make India a safer country, and to rehabilitate and augur serendipity for the victims of trafficking in India.
[1] https://www.unodc.org/unodc/en/human-trafficking/what-is-human-trafficking.html.
[2] The Indian Penal Code, 1860, Act 45 of 1860, Section 370.
[3] Article 23 of the The Constitution of India, 1950 states-
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.
[4] The Constitution of India, 1950, Article 23.
[5] Supra Note 2.
[6] The Indian Penal Code, 1860, Section 371 states- Habitual dealing in slaves.—Whoever habitually imports, exports, removes, buys, sells, traffics or deals in slaves, shall be punished with 1[imprisonment for life], or with imprisonment of either description for a term not exceeding ten years, and shall also be liable to fine.
[7] The Indian Penal Code, 1860, Section 372- Selling minor for purposes of prostitution, etc.—Whoever sells, lets to hire, or otherwise disposes of any 1[person under the age of eighteen years with intent that such person shall at any age be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, or knowing it to be likely that such person will at any age be] employed or used for any such purpose, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall be liable to fine.
[8] The Indian Penal Code, 1860, Section 373- Buying minor for purposes of prostitution, etc.—Whoever buys, hires or otherwise obtains possession of any 1[person under the age of eighteen years with intent that such person shall at any age be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, of knowing it to be likely that such person will at any age be] employed or used for any purpose, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
[9]The Indian Penal Code, 1860, Section 374- Unlawful compulsory labour.—Whoever unlawfully compels any person to labour against the will of that person, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.