This article has been written by Devesh Sharma, a final year law student at UPES, Dehradun.
Abstract
The foundation of a society’s governance and rule of law is the effective and efficient administration of justice. Fighting any crime, especially one as complicated and multifaceted as human trafficking, requires an understanding of the justice delivery system. A highly effective criminal justice system is necessary, according to the study’s discussion of the criminal adversarial justice system, criminal inquisitorial justice system, victim and police relations, investigation and victim process, the Code of Criminal Procedure Act of 2008, and victim rights. There is a hierarchy in the Indian criminal justice system. At the very top is the Supreme Court, which has both original appellate and advisory authority.
Introduction
The problem of human trafficking has existed since modern times. In the past, it was covered up as devadasis or another excuse. Despite our current democracy and freedom, human trafficking is becoming a bigger issue worldwide. In the name of gods or monarchs, human trafficking, slavery, and the complete denial of any human rights—even the most basic ones—have existed throughout recorded human history. With the rise of liberalism and rationalism in the modern era, it was believed that this threat to humanity would be defeated and that all equally freed people would live in harmony with one another while maintaining their human dignity and happiness. Have we eradicated this evil, despite our claims to treat everyone equally? Despite being denied their fundamental rights and dignity, no human being is for sale. Coercion, misinterpretation, or placing their trust in someone they shouldn’t have is how innocent people become entangled in this web. A serious violation of human rights that takes place all over the world is human trafficking. Human trafficking necessitates a coordinated, multidisciplinary national and international response because of its intricate cross-border nature. After the global arms trade and drug trafficking, human trafficking is the third most significant organized crime. Both wealthy and developing nations are impacted by the numerous and intricate causes of this worldwide phenomenon’s rise. This also applies to India. The trade of people for the benefit of the trafficker or others—usually for the purposes of forced labor, slavery, or commercial sexual exploitation—is known as human trafficking. This could include supplying a spouse in a forced marriage or removing organs or tissues, such as for ovary removal or surrogacy. Human trafficking can happen both domestically and internationally. Because the victims’ rights to travel are violated through coercion and their commercial exploitation, human trafficking is considered a crime against humanity. The trade in people is known as human trafficking, and it does not always entail moving an individual from one location to another.
Human trafficking
The trade of people for the trafficker’s or others’ use in forced labor, sexual slavery, or commercial sexual exploitation is known as human trafficking. This could include supplying a spouse in the event of a forced marriage or removing organs or tissues, such as in the case of ovary removal and surrogacy. Victims may be of any age, race, gender, or nationality, and it can occur in any community. According to the definition of United Nations: “Human Trafficking is the recruitment, transportation, transfer, harbouring or receipt of people through force, fraud or deception, with the aim of exploiting them for profit. Men, women and children of all ages and from all backgrounds can become victims of this crime, which occurs in every region of the world. The traffickers often use violence or fraudulent employment agencies and fake promises of education and job opportunities to trick and coerce their victims. ” [1]
Indian Legal Framework Against the Human Traffciking
Article 23 of the Constitution of India requires the state to safeguard its citizens against exploitation in any way. The article requires the state to implement laws that combat the threat of human trafficking and forbids “beggar” and other comparable forms of forced labor. Additionally, it stipulates that any infraction of any law prohibiting human trafficking will be punished in accordance with the provisions outlined in sections 366A, 366B, 370, and 370B of the Indian Penal Code, 1860[2]. The Indian constitution’s Article 39 requires states to shield children from exploitation in any way. 20 It should be mentioned that the Immoral Traffic in Persons (Prevention) Act 1956[3] now includes the rules and regulations of both of these articles. Law of ITPA have been supplemented by Indian Penal Code, 1860, which laid down provisions against women and children trafficking and penal sanction at the breach of those provisions.
- Section 3- it provides for punishment to a person for keeping a brothel or allowing premises to be used as a brothel or who is in charge of any such premises either by himself or through a tenant, occupier, etc.
- Section 4 – It provides for punishment to any person over 18 years of age, living on the earnings of prostitution of another person.
- Section 5 – It provides for punishment to any person who is involved in procuring, inducing or taking another person for the sake of prostitution.
- Section 6 – It provides for punishment to a person who detains another person with or without his consent in any brothel or any premises for prostitution with an intent that such detained person may have sexual intercourse with any person who is not the spouse of such detained person.
- Section 7 – Any person who carries on prostitution and the person with whom such prostitution is carried on in any premises which is within close proximity to a public place, including a hospital, nursing home, place of religious worship, hostel, educational institution, or in an area notified under the provisions of the Act, can be punished with imprisonment for a term of three months.
- Section 8 – Seducing or soliciting for the purpose of prostitution is also an offence and punishable with imprisonment up to six months or a fine up to Rs 500, in the case of a first conviction. In case of a subsequent conviction, the prison sentence can be extended up to one year including a fine of Rs 500. However, if the person soliciting is a man, the statute provides that he shall be punishable with not less than seven days imprisonment which may be extended to three months.
- Section 18 – A Magistrate can order the immediate closure of a place that is being used as a brothel or as a place for prostitution and is within 200 meters of any “public place” as referred to in Section 7 above, and direct the eviction from the premises from where any person is ostensibly carrying out prostitution on receipt of information from the police or otherwise. The occupier is given only seven days notice for eviction from such premises.
- Section 20 – It empowers a Magistrate, on receiving information that any person residing in or frequenting any place within the local limits of his jurisdiction is a prostitute, to issue notice to such person requiring him to appear before the Magistrate and show cause why he should not be removed from the place and be prohibited from re-entering it, and an order to be passed by the Magistrate effecting the same on merits, non- compliance of which will attract punishment in accordance with this section.
- Section 21 – The State Government may in its discretion establish as many protective homes and corrective institutions under this Act as it thinks fit and such homes and institutions when established shall be maintained in such manner as may be prescribed. Whoever establishes or maintains a protective home or corrective institution except in accordance with the provisions given shall be punishable under this section.
- Section 22-A – If the State Government is satisfied that it is necessary for providing for speedy trial of offences under this Act in any district or metropolitan area, it may, by notification in the Official Gazette and after consultation with the High Court, establish one or more Courts of Judicial Magistrates of the First Class, or, as the case may be, Metropolitan Magistrate, in such district or metropolitan area.
- Section 22-B – Notwithstanding anything contained in the Code of Criminal Procedure, 1973, the State Government may, if it considers it necessary so to do, direct that offences under this Act shall be tried in a summary way by a Magistrate [including the presiding officer of a court established under sub-section (1) of Section 22-A] and the provisions of Sections 262 to 265 (both inclusive) of the said Code, shall, as far as may apply to such trial.[4]
“THE JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT, 2015[5]”provides for protection, care, medical treatment rehabilitation and reformation of delinquent and neglected juveniles including girls.
Protection of Children from Sexual Offences Act, 2012[6]– It was written with the intention of fortifying the legal safeguards against child exploitation and sexual abuse. To address the problem of sexual offenses against children, a special law has been passed for the first time. Currently, the Penal Code has several sections that address sexual offenses. Nevertheless, the Penal Code of 1860 does not cover all forms of child sexual offenses and, more significantly, does not differentiate between victims who are adults and those who are children.
Effects of human trafficking on a nation
Human trafficking hurts a country’s economy in addition to impeding the development of both developed and developing nations. It poses a serious risk to a country’s economic stability. Profits from this can also be used to finance other illicit activities, which poses a threat to a country’s national security. The nation’s GDP (Gross Domestic Product) is not increased by the enormous profits made from this illegal enterprise. Every day, the poor are taken advantage of, which is a crime of exploitation. Additionally, it damages the welfare of the country, its citizens, and its communities while undermining the rule of law. Human trafficking continues to flourish in India, according to numerous reports and statistics released worldwide. One of the most recent reports, released in 2022[7], estimates that there are approximately eight million victims of human trafficking in India, the vast majority of whom are bonded laborers. 16 Traffickers target the most vulnerable members of society, making them the most disadvantaged. Unemployment skyrocketed as a result of the pandemic. Because they had to fight every day for food, shelter, and other necessities, it put a financial strain on the communities that were already struggling financially. Due to a lack of employment opportunities, they were compelled to work for pay below the government-mandated minimum wage. Every day, traffickers take advantage of millions of people in India through commercial sex trafficking.
Preventive measures to curb human trafficking
1- The government ought to implement policies that will increase social protection and create job opportunities.
2- putting in place practical steps to guarantee that men and women are paid equally. The right to equal employment opportunities and equal compensation for equal work should be guaranteed.
3- implementing educational initiatives to promote gender equality and respectful relationships between the sexes in order to lessen violence against women.
4- Relevant programs should be covered by the media.to educate the public about the dangers of human trafficking, including the need for assistance in the event that someone is trafficked and the detrimental and protracted effects of this threat.
Judicial precedents
People’s union for Democratic rights v. Union of India [8]: In this landmark judgement, The court ruled that the right to a minimum wage was part of the prohibition against forced labor. When debating the application of Article 23 of the Indian Constitution, the Honorable Supreme Court provided a definition of “forced labor.” It said that a “force” could be defined as any element that denies someone this choice of options and forces him to take a specific action. It will be referred to as forced labor if labor or service is required as a result of such an event. They would have to take whatever is offered to them if they were unable to negotiate with the employer. Therefore, the term “force” must encompass not only legal and physical force but also force resulting from economic hardship, which deprives the person in need of any other options when the compensation they receive is significantly less than the minimum wage.
Bachpan Bachao Andolan v. Union of India[9]: In this landmark judgement, According to the United Nations Convention against Transnational Organization Crime’s (UNCTOC) optional protocol, the Supreme Court defined trafficking as an organized crime. A complete prohibition on the use of children in circuses was also mandated by the court. It was also decided that no child should be denied the fundamental rights guaranteed by the Indian Constitution, taken into the hands of child traffickers, and subjected to any form of abuse, whether it be psychological or physical.
Vishal jeet v. Union of India[10]: This historic Supreme Court ruling addressed child prostitution in human trafficking and served as a precursor to it. The Supreme Court issued guidelines for the protection and rehabilitation of children who are forced into devadasi pits by their families or for cultural reasons, as well as those who are sold by pimps and brokers for the flesh trade. The honorable court further ruled that a humanistic approach, as opposed to a purely legal one, should be taken in the handling of cases involving this delicate subject. According to the court, this was a socio-economic issue in addition to a social one. Therefore, rather than being punitive, the measures should be more aimed at preventing it. In order to end child prostitution, the court also ordered the relevant law enforcement agencies to act appropriately and quickly in accordance with the current legislation.
Bandua Mukti Morcha v. Union of India[11]: This historic ruling by India’s esteemed Supreme Court addresses bonded labor rights. The court explained how bonded labor can be rehabilitated and ordered the Indian government to compensate bonded workers who have been freed or saved in accordance with the terms of the Bonded Labour System (Abolition) Act, 197615. After noting significant infringements on their fundamental rightsand human rights
CONCLUSION
The crime of human trafficking is intricate and well-planned. To combat it, we require a highly effective criminal justice system. There is a hierarchy in the Indian criminal justice system. At the very top is the Supreme Court, which has both original appellate and advisory authority. In India, the concept of profit and loss has given rise to numerous new socio-judicial advancements. It has contributed to the development of a new human rights framework. The six phases of the criminal justice system are the filing of a First Information Report (FIR), the investigation, the charge sheet, the trial, the defense against the prosecution, and the verdict.
[1] United Nation : office on drugs and crime (https://www.unodc.org/unodc/en/human-Trafficking/Human-Trafficking.html )
[2] THE INDIAN PENAL CODE 1860 ( https://www.indiacode.nic.in/repealedfileopen?rfilename=A1860-45.pdf )
[3] THE IMMORAL TRAFFIC (PREVENTION) ACT, 1956 ( https://www.indiacode.nic.in/bitstream/123456789/15100/1/immoral_traffic_prevention_act_%28itpa%29_1956.pdf )
[4] Ibid
[5] THE JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT, 2015 ( https://www.indiacode.nic.in/bitstream/123456789/2148/1/a2016-2.pdf )
[6] THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT, 2012 ( https://www.indiacode.nic.in/bitstream/123456789/2079/1/AA2012-32.pdf )
[7] 2022 trafficking in person report – united states department of state (2022) U.S. Department of State. U.S. Department of State. Available at: https://www.state.gov/reports/2022-trafficking-in-persons-report/
[8] (1982) 3 SCC 235.
[9] 2011 SCC (5) 1
[10] (1990) 3 SCC 318
[11] (1997) 10 SCC 549.
