Author: Paikar Mustafa,
Law Graduate, 2019
Law College Dehradun, Uttarakhand
Human trafficking is a transnational global organised crime which has developed into an industry and profit earning venture. The problem of trafficking in humans has long become an epidemic that has infected almost every nation in the world especially economically poor and developing nations which serve as the hub for thrusting people in trafficking and commercially exploiting them. Over the years, international law has developed a mechanism to combat trafficking in humans in cooperation with nation-states to give impetus to the enforcement. The article throws light upon the problem of trafficking, its aspect, combat mechanism with special reference to Indian National laws and prospects of this problem.
Human trafficking is the oldest and globally perpetuating crime of which trafficking, punishing, and putting an end to the crime has become a mammoth task especially in the times when the world has accidentally met and shaken out of its comfort by a pandemic whose devastating reach mocks humanity’s collective capacity to prevail. Human trafficking has transformed into organised, professional, and hideous crime often covered up under the garb of legalised trade preying on the needy, poor, and marginalised section by luring them with money, financial boost, and life of dreams. Where on the one hand “Dignity and Justice for all” is echoed and warranted in every walk of life, millions of young lives of vulnerable people are thrown in vain in the pit of never-ending suffering of exploitation to receive commercial benefits, the resistance to which many-a-times cost lives.
2. HUMAN TRAFFICKING: MEANING
The United Nations Convention against Transnational Organized Crime defines, “Human Trafficking as the recruitment, transportation, harbouring or receipt of persons, for the purpose of sexual slavery, sexual exploitation, forced labour, organs removal, etc”.
Human trafficking has become a highly organized industry in catering to the demands and supply all over the globe. The financing to the business is provided from all over the world while the poor and developing nations are targeted as the initial point in trafficking. The practice is age-old and was prevalent in ancient times in one or other forms. Devdasi system where young girls are made the object of pleasure for high caste devotees and priests for sexual exploitation, Bonded-labour where labour is forced to work at negligible or no pay to repay loans. Practices such as launda naach where boys dressed as girls used to entertain men, give an insight into the building up of human trafficking as an organized crime with its roots all over the world. Commercial benefits in the engagement and proliferation of this crime are the most alarming concern which more or less proves the huge obstacle in the extinction of this crime from the globe. The syndicates and individuals involving employ means and sources to influence authorities and with poverty lying at the centre of this crime, engagement of people mostly children and women is easily procured.
3. INTERNATIONAL EFFORTS AGAINST TRAFFICKING
International law is amply concerned with the problem of human trafficking and the laws related to trafficking relates to the abolition of Slavery. The Slavery Convention (1926), The Universal Declaration of Human Rights (1948), International Convention on Civil and Political Rights (1966), The United Nations Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others (1949), and the Convention on the Elimination of all Forms of Discrimination Against Women (1979) are the general yet most pivotal instruments that laid the foundation for the freedom and rights of all human beings.
The United Nation Convention Against Transnational Organised Crime and its two protocols: the United Nations Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and Children, and the United Nations Protocol against the Smuggling of Migrants by Land, Sea, and Air, which entered into force in 2003-2004. The United Nations Office on Drugs and Crime (UNODC) created these conventions, which have provided international law’s ability to combat human trafficking. Article 5 of the Convention requires that the Trafficking in persons be criminalised in Domestic Legislation. The protocol also requires criminalisation of an attempt to commit trafficking, participation in such offence, and organising and directing others to commit such offence. The UNODC in support of these instruments and conventions established the United Nations Global Initiative to Fight Human Trafficking (UN. GIFT) in 2007. In 2013, the United Nations General Assembly designated 30 July as World Day against Trafficking in persons. The resolution sought to develop a plan of action for an age-sensitive, gender-based group of people which makes them vulnerable to trafficking.
4. INDIA’S EFFORT IN COMBATING HUMAN TRAFFICKING
As per the data submitted by the National Crime Records Bureau to the Supreme Court in 2019, Mumbai and Kolkata had the highest number of trafficking in women and children, especially for sexual exploitation, forced marriage, child labour etc.
A 2014 report stated that approximately 16 million women are victims of sex trafficking in India a year. 40 percent of them are adolescents and children.
The Anti-Human Trafficking laws in India draw strength from the Constitution of India which has made the trafficking of human beings or persons and begar and other similar forms of forced labour are prohibited under Article 23(1) enshrined under Part III of the Constitution having the status of inviolable fundamental rights Constituting the Basic Structure of the Constitution.
Article 24 is equally important which prohibits Child Labour. It provides, “No child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment”.
The Immoral Traffic Prevention Act, 1956 is a central legislation, previously known as the Suppression of Immoral Traffic in Women and Girls Act, 1956. The Act was later amended to cover all persons whether male or female, who are exploited sexually for commercial purposes. The Act was amended substantially times in 1986 and 2006. It provides for the definition of minor below 18 years of age, adopted definition of trafficking from the UN Protocol and have penal provisions for brothel keepers, pimps and person who engage others in the prostitution business. The Act provides for Trafficking Police officers, special courts, and special public officers. There are provisions for rehabilitation of the victims such as corrective homes, protective homes, etc.
The Indian Penal Code, 1860
The Indian Penal code, a substantive penal law also provides for punishment against trafficking and prostitution.
Section 370 of the code makes provision for trafficking of persons and punishes the perpetrators with imprisonment for the term of seven years to life imprisonment, with fine based on the gravity of the offence.
Section 370A punishes the exploitation of a trafficked person with imprisonment up to five years with fine and where any such person is minor, then imprisonment up to seven years and fine. Section 372 and 373 states that whoever sells or buys or hires or obtain possession of any person under the age of eighteen years for prostitution or illicit intercourse or immoral purposes shall be punished with imprisonment for up to 10 years with fine.
Section 366A punishes procuration of minor girls for forced or illicit intercourse shall be punished with imprisonment for ten years and with fine.
Section 366B recognises cross border trafficking into prostitution and punishes the importation of girls from a foreign country for forced or illicit intercourse with imprisonment for ten years and with fine.
The code provides for punishment of rape under section 376 with the minimum imprisonment for the term of seven years and with fine.
The Child Labour (Prohibition and Regulation) Act, 1986 bans child labour in Industries and regulate conditions in non-hazardous occupations and lays down deterrent punishment to violators of the Act.
The Prohibition of Child Marriage Act, 2006 provides for the prohibition of solemnisation of child Marriage and matters connected therewith and incidental thereto. The Act makes child marriage voidable and prescribes punishment for promoting or solemnisation of child Marriage
The Juvenile Justice Act, 2015 lays down law concerning the Children in conflict with the law and need of care and protection. The Act lays down provision keeping in mind the best interest of the child and provides for social reintegration, adoption, foster care, and welfare committees and board for children.
Beside the Legislations, there are institutional mechanisms to combat trafficking viz.,
1. The National Commission for Women - statutory Body constituted on 31st January 1992 to safeguard the interests of Women.
2. The National Human Rights Commission - established on 12 October 1993 under the Protection of Human Rights Act, 1993.
3. The National Commission for Protection of Child Rights Act, 2005 to protect, promote, and defends child rights in the Country.
The prevention of Human Trafficking involves implementing and formulation of programs in consonance with International Instrument and revisit the necessity of changes in the existing plans to effectively combat the problem from the ground level. India shares its borders with many neighbouring countries most of which are prone and vulnerable to the Trafficking activities. The porous border between India and Nepal, India, and Bangladesh project the bigger problem. UNODC is developing law enforcement material and programs to prevent human trafficking and smuggling across Border. Chapter 9 of UNODC’s Toolkit to Combat Trafficking in Persons contains 19 Tools for preventing trafficking.
India ratified the SAARC Convention on Preventing and Combating Trafficking in Women and Children for Prostitution. Under it, a regional task force has been constituted to implement the Convention. The Ministry of Women and Child Development has constituted a Central Advisory Committee and formulated a National Plan of Action to combat trafficking and commercial sexual exploitation of women and children in 1998.
The protection and rehabilitation of the victims of Human trafficking should be safeguarded to prevent these people from adapting trafficking as a venture to earn money. The social reintegration and monetary assistance remain at the core of this issue. The physical safety of victims, protection of their privacy are some concerns dealt by UNODC in its second edition of the toolkit to combat trafficking in persons that were launched in October 2008. The toolkit includes checklists to help identify victims of trafficking and provide victim assistance including medical aid and compensation.
The UNODC has funded support projects for victims of trafficking in India, Ukraine, Mexico, Pakistan, Thailand, etc. with more than 280 victims repatriated from India to Nepal.
The Government of India with this purpose through its Ministry of Women and Child Development has developed a protocol for pre-rescue, rescue, and post-rescue operations of Child Victims of Trafficking for commercial sexual exploitation which provides guidelines for rescue of victims from their place of exploitation, medical and legal procedures to be followed and rehabilitative measure to be employed.
Further, to ensure effective and smooth repatriation and rehabilitation of migrant child labour, the Ministry of Labour and Employment has formulated a protocol for prevention, rescue, repatriation, and rehabilitation of trafficked and migrant child labour.
Protocol on Inter-State Rescue and Post-Rescue Activities Relating to the Trafficked persons and Human Trafficking Management Information System to collect data on trafficked persons, victims, and traffickers have been developed.
The Government of India has launched several schemes and programs. The Ujjwala scheme launched on 4th December 2007 provides for prevention, rescue, repatriation-of victims to their country of origin, reintegration, and rehabilitation of victims.
Swadhar or Short Stay Homes cater to rescued victims of trafficking and prostitution to provide shelter, residence, food, and clothing.
The Integrated Child Protection Scheme was launched by the Child Welfare Bureau to create a safe and healthy environment for children.
Mere criminalising the act of Human Trafficking would not suffice until the apprehension and conviction of offenders are substantially great in numbers. UNODC aims to achieve a greater number of convictions for which it has helped countries in making legislation. Chapter 5 of UNODC’s Toolkit to Combat Trafficking in persons provides for 20 tools to issues of law enforcement and prosecution of traffickers. It gives guidelines about investigation processes, protection of witnesses, special considerations relating to child victims, the role of prosecutors, etc.
In India, the government’s Ministry of Home Affairs is responsible for implementing and enforcing legislation related to trafficking. The Ministry has set up an Anti-Trafficking Nodal Cell in collaboration with various States to ensure the apprehension of traffickers. In partnership with UNODC, Anti-Human Trafficking Units have been established to strengthen the training of police officers and law enforcement which has been of great success in India. The Ministry has also formulated different programs such as the Training and Capacity Building Programme in July 2004 to make suitable recommendations for combating problems. Workshops and training manuals have been developed to sensitise police personnel at various levels to bring awareness and understand the gravity of the crime.
As we have come across, there are ample provisions, instruments, mechanisms, Legislations that provide structure to combat trafficking in humans, punishment, and after-effects, but is it or will it be enough remains the perennial question. Trafficking has its roots in every section of the society. There is a possibility that a Neighbourhood of our home has a history of dealing with trafficking but do we care? If not, then why not? The humankind is in a severe crisis that has ever been witnessed. The Coronavirus pandemic has exposed deep inequalities and fragile preparedness of advancement while the onslaught stares at the future of many helpless souls. It may sound bitter, but during these times, it is the worst of human nature and the opportunistic tendency of humans that triumphs over good. The vulnerable class of people who have been brought down below the bare minimum is forced by circumstances to be exploited. The hunger, cries of help, joblessness, sustenance are gargantuan in a nation like ours where the economy is barely showing positive figures and catastrophe due to pandemic are at regular increase. Now more than ever is the need to infuse a humanitarian approach in dealing with trafficked and potential victims. Theoretical achievement is reduced to nothing without considering its lived realities because where getting exploited becomes a forced choice, then there is very little that can be rescued.