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EXPLOITATION OF TRAFFICKED PERSONS

By: Arundathi Mamidala, 5th-year BA.LL.B(H) student at Xavier Law School, XIM University, Bhubaneswar.


INTRODUCTION

We have often heard that wrong is just wrong, right is right, and crime is just crime. In this race of labeling things and saving our socio-political face, we have forgotten our values; we have forgotten or rather have sold our reasoning. Various crimes are not just crimes but rather a mirror to reflect upon the advancement of human beings. A few crimes are more than just crimes. Still, they reflect the darker side of our society, which we humans, in our hunger for technological and material development, subtly deny. Indeed, humans are born with a subtle art of denial. In this article, first, I will introduce you to various provisions present at hand to deal with the sexual exploitation of trafficked women. Section 370Section 370A of IPC, and the Immoral Traffic Prevention Act are three such provisions that deal with the problem at hand. Apart from this, I will delve into the history of legislation, the reports of various committees, the changes suggested, and the deviation of courts from a fair interpretation. The increase in crime rate and the infamous incident of Nirbhaya in 2012 made the legislators contemplate the cavities of the legal framework; therefore, apart from the current position, it is necessary to take a look at the matter with a retrospective approach.

 

IPC SECTION 370

Section 370 of the IPC deals with the Trafficking of persons. For the offense of trafficking a person, the following things are essential:

The accused should have either recruited, transported, harbored, or transferred a single or more than one person. The methods mentioned above may involve threats, force, coercing, abducting, deceiving, or the use of power. Whenever an individual uses any means or process from the means mentioned above, such a person is said to have committed the offense of trafficking a person. Exploitation can be physical or any other form of sexual exploitation.

It has to be noted that in the commission of the offense, it doesn’t matter if there was a willingness on the part of the victim.

Punishment

  • The convicted shall be imprisoned for a term not less than seven years, which may extend to 10 years; the convict is also liable for a fine.

  • When trafficking involves more than one person, the convicted shall be imprisoned for a term not less than ten years, which may extend to imprisonment for life, along with the liability of a fine.

  • When trafficking involves one or more than one minor, the imprisonment may be any period between 14 years and imprisonment of life; if the convicted is subsequently convicted again on a different occasion, then he will be punished with imprisonment for life.

 

Wider Ambit of Exploitation in Section 370

It is seen that while the older section dealt only with the aspect of slavery, the new section widened its horizons to take several other kinds of exploitation into its ambit. The term “exploitation” has a much broader arena in section 370. It includes various aspects, as stated in 370(1). The purpose of exploitation is at the core of the offense of trafficking. In addition to this section, the explanation also aids in understanding the meaning of exploitation. Exploitation further includes;

• Prostitution- which is stated as a kind of exploitation. In Bhagubhai Patel V. State of Gujarat, the question arose before the court as to whether a brothel customer is covered under Section 370 of the Indian Penal Code. With a note of caution, the learned judge stated that a customer is also included in section 370. It was further noted that in section 370, which deals with the offense of Trafficking of Persons, the term "exploitation" includes "prostitution" itself. This, in essence, means that "prostitution" will now be interpreted as exploitation. This problematic formulation has now been incorporated into the recently passed Ordinance. The concern raised is that by introducing the language of prostitution itself as exploitation, the amendment endangers sex workers instead of protecting them from sexual exploitation, as there is no aspect of consent. The legislative framework that criminalizes prostitution as exploitation drives the practice underground and renders the already vulnerable sex worker more susceptible to violence and exposure to HIV and deepens the lack of legal remedy to redress violence.

• Other forms of sexual exploitation - Section 370 of IPC criminalizes people in sex work since it does not differentiate between "coercive prostitution" and prostitution, nor does it talk about the "exploitation of prostitution.”

• Forced Labour or Services and slavery- Section 370 covers all the aspects of forced labor under the ambit of exploitation and also all aggravated forms of slavery.

 

SECTION 370A

Section 370 deals with the trafficking of persons in a general manner, whereas Section 370A deals specifically with the exploitation of a trafficked person. Commission of offense under Section 370A takes place when any person knows that the minor has been trafficked or has specific reasons to believe the same and engages a minor in a work that includes sexual exploitation. Here, the punishment is imprisonment for less than five years, which may extend to 7 years. In the case of an adult, the punishment is not less than three years and may extend to 5 years.

S.370 IPC CAN’T BE INVOKED ON THE “PRESUMPTION THAT THE ACCUSED INDULGED HIMSELF IN HUMAN TRAFFICKING”

The Karnataka High Court has said that Section 370 of the Indian Penal Code cannot be invoked merely on the presumption that an accused indulged himself in human trafficking.

A Single judge bench of Justice M Naga Prasanna, while quashing criminal proceedings initiated against one Rajkumar, said, "What can be gathered from the complaint and the chargesheet filed by the police is that it is presumed that the petitioner had indulged himself in human trafficking. Therefore, Section 370 of the IPC was invoked against the petitioner."

It added, "The soul of the provision is exploitation—no allegation in the complaint made by any victim alleging exploitation by the petitioner. The complaint, investigation, and wavering statements of the persons who accompanied the petitioner created suspicion in the mind of the Immigration Officer. The suspicion was due to the statement of handing over some cash to the petitioner by the people who accompanied him. This cannot, in my considered view, be enough circumstance to prosecute the petitioner for the offense punishable under section 370 of the IPC for human trafficking.

 

LEGISLATION

Indian Penal Code, 1860 is the legislation governing criminal offenses in India. There are several provisions for prescribing the necessary punishments for human trafficking.

Section 370 of the Indian Penal Code states that any person who, for fulfilling the purpose of exploitation, either recruits, transports, harbors, transfers or receives a person or persons by the following methods:

  1. Use of threats;

  2. Use of force or any form of coercion;

  3. By abducting;

  4. By indulging in fraudulent activities or deceiving;

  5. By abusing power;

  6. By way of inducement, which includes giving or receiving payments or other benefits, to attain the consent of any person who has control over the person who is recruited, transported, harbored, transferred, or received.

Such a person who indulges in the acts above is liable for the commission of the offense of human trafficking. 

The explanation of the provision states that the term ‘exploitation’ is an inclusive term. It includes all acts of physical exploitation or any form of sexual exploitation, slavery, or practices that resemble slavery, servitude, or the forced harvesting of organs. It further clarifies that the victim’s consent stands immaterial in determining the offense of trafficking. The punishment prescribed is imprisonment for 7-10 years and a fine.

Section 371 of the Indian Penal Code, 1860, mentions the offense of habitual dealing with enslaved people. It states that any person who is habitually involved in the act of exporting, removing, importing, buying, selling, trafficking, or dealing with enslaved people is liable to be punished with life imprisonment or imprisonment for a duration that does not exceed ten years. Such a person shall also be liable for a fine.

Similarly, Section 372 of the Indian Penal Code and Section 373 of the Indian Penal Code, 1860 deal with the selling and buying of minors for prostitution, respectively. Persons involved in such acts are liable to be punished with imprisonment for a duration that does not exceed ten years. Such persons shall also be liable for a fine.

What is the punishment for the IPC 370 case?

Punishment of human trafficking is discussed in the sub-sections of explanation 2. According to that, the punishment for human trafficking varies with the intensity of the crimes.

Sub-section 2 of explanation 2 states the punishment for human trafficking. It states that if a person is found guilty of such an offense, they should be punished with rigorous imprisonment, which should not be less than seven years and can be extended up to ten years, and a fine shall also be imposed.

Sub-section 3 of explanation two states that if more than one person has been transferred or trafficking of more than one person has taken place, in that case, the punishment should be rigorous imprisonment, which should not be less than ten years and can be extended to life imprisonment and fine shall also be imposed.

Sub-section, 4 of explanation 2, discusses the trafficking of a minor; it states that if a person is found guilty of the trafficking of a minor, then that person shall be punished with rigorous imprisonment for ten years, which can be extended up to life imprisonment, and a fine shall also be imposed.

Sub-section 5 of explanation 2 discusses the trafficking of minors. Suppose a person has committed the offense of trafficking of minors or more than one minor. In that case, that person shall be punished with rigorous imprisonment for fourteen years, which can be extended to life imprisonment, and a fine shall also be imposed on him/her.

Sub-section 6 of explanation 2 discusses the punishment in cases where a person is found guilty of trafficking a minor more than one time or more than once. That person should be punished with life imprisonment, which means that person shall be in prison till he/she dies naturally, and a fine shall also be imposed.

Sub-section 7 of explanation two talks about the liability of a public servant or a police officer who participated, helped, or aided in human trafficking. Suppose any public servant or a police officer’s involvement is proven. In that case, that public servant or police officer should be punished with life imprisonment, which means that person shall be in prison till they die naturally, and a fine should be imposed.

Case laws

In Laxmi Kant Pandey v. Union of India: In this case, the Supreme Court has provided some procedures to check that intercountry adoptions also monitor the people from foreign countries who want to adopt a child to reduce the trafficking of minors. The Supreme Court held that the main reason for the adoption is for the welfare of the child. Still, there is a possibility that the child, after getting adopted by foreign parents, will be a victim of negligence or neglect by the adoptive parents, or they might abandon the child in the foreign country; in that case, the child may become the victim of physical or sexual abuse. Therefore, checking that the child is in good hands is essential.

Vishal Jeet v. Union of India: In this case, the Supreme Court has made some guidelines to form a committee of Central and State Governments to fight the trafficking or to create a committee whose responsibility will be to look at the matters related to trafficking and to fight with it so that trafficking of children and girls will be reduced. In this case, the court has observed that even though there are laws related to this, the trafficking of children and girls is being taken place. The number of cases related to children and girls for prostitution is increasing court held that law should be enforced regarding such matters and people like pimps or brokers, or others who are behind this shall be punished. Strict legal actions should be taken against them.

Gaurav Jain v. Union of India: In this case, the Supreme Court held that trafficked people also have the right to live life with dignity, but the victims of trafficking or trafficked people have difficulty in doing so because of the torture or trauma they have suffered. Therefore, the Court ordered the formation of a committee for the rehabilitation of trafficked people and their children who become victims so that they can also have equal opportunities and live their lives with dignity.

Trafficking of Persons (Prevention, Protection & Rehabilitation) Bill, 2018

The primary purpose of this Bill is to introduce a law for the investigation of all types of trafficking. It also aims to create a law for rescuing, protecting, and arranging for the rehabilitation of victims of trafficking. It also classifies certain forms of trafficking as aggravated forms of trafficking, which attracts a higher punishment. These aggravated forms of trafficking include trafficking for forced labor, begging, inducing early sexual maturity, etc.

The criticism of the Bill is that it punishes the owner or the lessor of a premise if he knowingly permits trafficking to be continued in the premise. The Bill ‘presumes’ that such owner or lessor knows the offense unless they can prove otherwise. This provision could violate Article 21 of the Indian Constitution of India. The Bill also provides punishment for persons who indulge in the distribution or publication of material that leads to trafficking. It is not clear how it will be determined that an act is likely to lead to trafficking.

Immoral Traffic (Prevention) Act, 1956

The Immoral Traffic (Prevention) Act of 1956 pursues the Convention for the Suppression of the Traffic in Persons and the Exploitation of the Prostitution of Others. The Act primarily focuses on prostitution and sex workers. It defines prostitution as sexual exploitation or abuse of persons for commercial purposes under Section 2(f). Under Section 3 of the Act, the punishment for keeping a brothel or allowing the use of a premise as a brothel is given. Section 4 of the Act prescribes punishment for those people who live on the earnings of prostitution.

Goa Children’s Act, 2003

This State Legislation provides a comprehensive definition of trafficking, although it is restricted to children and Goa. Under Section 2(z) of the Act, the term ‘child trafficking’ is defined as procuring, recruiting, transporting, transferring, harboring, or receiving children legally or illegally, either within or across borders, by employing the means of threat or use of force/coercion, of abducting, of fraudulent acts, of deceiving, of the abuse of power or a position of vulnerability or of giving or receiving payments or benefits to attain the consent of the person who has control over another person, for either monetary gain or otherwise.

 

CONCEPT & ACT AGAINST DEVDASI

Condemning the prevalence of the illegal practice of “dedicating” young girls as Devadasis, the Supreme Court on Friday described the practice as an “evil” done to women, who were later even subjected to sexual exploitation and pushed into prostitution.

Taking a stern view, a Bench of Justices F.M.I. Kalifulla and S.A. Bobde directed all States and Union Territories, especially Karnataka, Maharashtra, and Andhra Pradesh, to strictly enforce the Centre’s to check the “undesired and unhealthy” practice of forcing young girls to serve as Devadasis.

The urgency was shown by the Bench when Supreme Court advocate V.K. Biju, representing the Kerala-based NGO, S.L. Foundation, drew the court’s attention to the lackluster approach of the State authorities and the police forces of Karnataka, Andhra Pradesh, Maharashtra, and Tamil Nadu to the problem. He contended that neither were the police enforcing the law nor were the State governments properly utilizing funds allocated for the rehabilitation of girls who were pushed into the Devadasi system.

Additional Solicitor General Pinky Anand claimed that State-level legislation, such as the Karnataka Devadasis Prohibition of Dedication Act, 1982, and Maharashtra Devadasis Abolition Act, 2006, had abolished such practices.

Besides, Section 372 of the IPC, which prohibits selling minors for purposes of prostitution, and the Immoral Traffic (Prevention) Act, 1956, also makes prostitution an offense in or in the vicinity of public places.

Advisory issued: “The Union government has issued an advisory to all States and UTs to stop illegal activities of subjecting young girls to the Devadasi system. Regarding its laudable objectives, we refer it to all States and UTs to strictly implement the directives to check such unethical practice,” the court ordered.

The court also allowed any incidents regarding the system of Devadasi prevailing in “Beriya” and “Nat” communities to be brought to the notice of the State authorities concerned.

The apex court started hearing on the issue when apprised of how Dalit girls were dedicated as Devadasis in Uttangi Mala Durga Temple in Davanagere district of Karnataka.

 

NEED FOR REFORM IN LEGISLATION

The erstwhile Section 370 of the Indian Penal Code, 1860, was replaced by the Criminal Law Amendment Act. The amendment inserted specific new terminologies to increase the scope of criminalization. The Amendment was a result of the report presented by the Justice Verma Committee, which primarily focused on the sexual exploitation of trafficking victims. 

The insertion of Section 370A of the Indian Penal Code, 1860 is a restricted provision as it does not take into account the exploitation of trafficked persons in other sectors of forced labor, for example, agriculture, domestic work, construction industry, or beggary rackets. These are a few areas where rampant exploitation of people who are trafficked still takes place. 

Further, the extant laws do not provide sufficient safety mechanisms to prevent human trafficking. The existing legislations primarily aim at commercial sexual exploitation and do not cover trafficking made for other purposes. Additionally, the legal framework is insufficient in terms of providing an effective system for the safety, recovery, and compensation of victims of trafficking.

Further, because of the Act’s emphasis on brothels, sexual exploitation that takes place on private premises is uncovered mainly by the legislation. Also, treating the victims as the offenders implies a contradiction because the victim cannot simultaneously be an offender. The detention of victims in ‘corrective’ homes establishes this contradiction. 

The Act also does not cover the practice of recruiting girls for prostitution under the garb of religion – for example, dev-dasi. The law also does not clearly define the rights of the victims. Moreover, due to the lack of a witness protection program or the option of in-camera proceedings, victims refrain from testifying, especially in the cases of child victims. The Act severely neglects the cross-border dimensions of human trafficking, which also includes interstate trafficking. An Amendment Bill was introduced in 2006, but no action has occurred.

 

CONCLUSION

The issue of human trafficking is susceptible. The need of the hour is a comprehensive strategy to deal with it. The government should aim at rehabilitation and integration of the victims into society. The laws concerning human trafficking should be more stringent compared to the punishment imposed.

Cooperation is required at the Central and State levels to tackle this issue. The country needs to enforce municipal laws that align with international regulations. Society is moving forward rapidly, and the law needs to be dynamic to address these growing concerns.

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