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Human Trafficking laws in India - Section 370 IPC


June 25, 2022
By Advocate Chikirsha Mohanty



What is Human Trafficking?

Human trafficking is the trade of human beings for reasons such as forced labour, or sexual slavery and exploitation, or forced marriages, or extraction of organs etc. Human trafficking may occur nationally, or even across borders. Victims of trafficking are mostly women or children, as has been seen in India. However, in order to combat the problem created by such heinous activities which has turned India into a hotspot of human trafficking, anti-trafficking laws have been put in place and the Government of India has also taken several measures and laid down certain other administrative provisions.

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What are the laws against Human Trafficking in India?

Various laws for prevention of human trafficking exist in India. These legislations are amended time and again in order to make sure all kinds of trafficking are covered by them and that stringent action can be taken by the authorities against such traffickers.

1. The Constitution of India has prohibited all kinds of trafficking under Article 23 and any contravention of this legal provision will be a punishable offence in accordance with law.

2. The principal act for prevention of trafficking for the purpose of commercial sexual exploitation is the Immoral Traffic (Prevention) Act, 1956 (ITPA) . Under this act, the Government of India can penalize such traffickers with a prescribed penalty of 7 years’ to life imprisonment.

3. A special law for the protection of children from sexual exploitation and sexual abuse also came into effect on 14th November, 2012, being the Protection of Children from Sexual offences (POCSO) Act, 2012.

4. Apart from the above mentioned legislations, various other sections under the  Indian Penal Code cover trafficking of children and women for sexual exploitation. Prohibition of kidnapping and selling and buying minors into prostitution are provided under Sections 366(A) , Section 372 and  Section 373 respectively. Under these provisions, penalties are for a maximum of 10 years’ imprisonment and a fine. The IPC has provisions relating to importation of girls under 21 years of age from a foreign country as well as for kidnapping and abduction for slavery, unnatural lust, etc under Sections 366B and Section 367 respectively.

5. The Criminal Law (amendment) Act 2013 (Nirbhaya Act) came into force on 3rd February, 2013, which provides for amendment of the Indian Penal Code, the Code of Criminal Procedure, 1973, the Indian Evidence Act, 1872 and the Protection of Children from Sexual Offences Act, 2012, being the laws related to sexual offences. After this amendment, Section 370 of the Indian Penal Code was substituted with Section 370 and 370A which provide for wide-ranging measures to surmount the ever-increasing dangers of human trafficking.

6. Special legislations have also been enacted in our country which attempt to prevent human trafficking. Bonded and forces labour are prohibited in India through the Bonded Labour System (Abolition) Act, 1976, Child Labour (Prohibition and Regulation) Act 1986, Juvenile Justice  (Care and Protection of Children) Act .

7. There exist other specific legislations relating to trafficking in children and women, including the Prohibition of Child Marriage Act, 2006, Child Marriage Restraint Act 1929, Offences Against Children Act, 2005, Transplantation of Human Organs Act, 1994.

8. Local legislations have also been enacted by the State Governments to deal with the issue of human trafficking. (e.g. The Punjab Prevention of Human Smuggling Act, 2012, The Goa Children’s Act 2003).

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Section 370 of the Indian Penal Code

Section 370 of the Indian Penal Code states that:

Whoever, for the purpose of exploitation, (a) recruits, (b) transports, (c) harbors, (d) transfers, or (e) receives, a person or persons, by—

  • using threats, or

  • using force, or any other form of coercion, or

  • by abduction, or

  • by practicing fraud, or deception, or

  • by abuse of power, or

  • 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 offense of trafficking.

Explanations

1. The expression “exploitation” shall include any act of physical exploitation or any form of sexual exploitation, slavery or practices similar to slavery, servitude, or the forced removal of organs.

2. The consent of the victim is immaterial in the determination of the offense of trafficking.
 
Whoever commits the offense of trafficking shall be punished with rigorous imprisonment for a term which shall not be less than seven years, but which may extend to ten years, and shall also be liable to pay fine.

Where the offense involves the trafficking of more than one person, it shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life, and shall also be liable to pay fine.

Where the offense involves the trafficking of a minor, it shall be punishable with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, and shall also be liable to pay fine.

Where the offense involves the trafficking of more than one minor, it shall be punishable with rigorous imprisonment for a term which shall not be less than fourteen years, but which may extend to imprisonment for life, and shall also be liable to pay fine.

If a person is convicted of the offense of trafficking of minor on more than one occasion, then such person shall be punished with imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and shall also be liable to pay fine.

When a public servant or a police officer is involved in the trafficking of any person then, such public servant or police officer shall be punished with imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and shall also be liable to pay fine.
 



What are the Administrative provisions to combat Human Trafficking in India?

A number of measures have been taken by the Ministry of Home Affairs, Government of India in order to confront the dangers of human trafficking. These administrative provisions are as follows:

1. Anti Trafficking Cell (ATC) : In 2006, the Ministry of Home Affairs (MHA) set up the ATC to act as the central point for communication of numerous decisions and to follow up on State Governments’ actions towards fighting the heinous crime of human trafficking.

2. Advisories : Comprehensive advisories have been issued by the MHA to all States/Union Territories to help advance the efficiency in dealing with the crime of human trafficking and also to proliferate the responsiveness of the law enforcement machinery.

3. Ministry of Home Affairs’ scheme : Under a ‘Comprehensive Scheme for Establishment of integrated Anti Human Trafficking Units and capacity building of responders’, a  fund for creation of Anti Human Trafficking Units for 270 districts of India has been released by the Ministry of Home Affairs.

4. Strengthening the capacity building : A number of Training of Trainers (TOT) workshops on combating the crime of Human Trafficking were held throughout India for Police officers and for Prosecutors at District, State and Regional level to create awareness and help improve the capacity building of agencies of law enforcement of our country.

5. Judicial Colloquium: With the goal to prepare the judicial officers about the number of concerns relating to trafficking of humans and to make sure the court process is speedy, Judicial Colloquium on human trafficking are held at the level of the High Court. These are specifically held for sensitizing and training the judicial officers of the trial courts. 11 Judicial Colloquiums have been held so far.

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How to identify a Human Trafficking Victim in India?

Victims of human trafficking are often masked, nonetheless, it is possible that one will come across individuals or situations of concern. Human trafficking is happening all around us and being able to ‘spot the signs’ could definitely help in saving lives.

There are quite many indicators which could help identify victims of human trafficking. These might include the person showing signs of psychological trauma like trying to avoid eye contact, seeming fearful, anxious, tearful or showing signs of depression. The person could exhibit signs of physical abuse such as unexplained cuts or bruises on the body. There could be inconsistent details while telling their story or might be unable to answer questions such as where they live, might present with secrecy or even say they can’t schedule appointments. The person may show inability to leave their residence or job. The victim could be seen in a person who always has someone answering or translating questions on behalf of them. A person of any age providing commercial sexual acts unwillingly or one providing commercial sex acts under 18 years could be identified as a victim. The person might show signs of being afraid of receiving help from an outside entity or law enforcement.

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What are the main causes of Human Trafficking in India?

There are a number of causative factors for human trafficking, mainly in children and women. Poverty plays a major role here as the poor socio-economic conditions of many families in addition to illiteracy, lack of income opportunities especially for women and also their family members in rural areas, the pressure of collection of money for dowry along with the lack of awareness about the activities of the traffickers leads to women being sent off to distant places for work, low status of girl child, violence against women etc. Parents in tribal areas send off their children to the cities for a better life in terms of safety and education.

Traffickers get girls from distant states, fool their families into believing that they are being taken away for the purpose of marriage, only to later push them into prostitution. In fact, girls and women are not trafficked for prostitution, but they are also bought and sold just like any other commodity in many regions of our country, especially where female ratio is less as compared to male ratio because of the practice of female infanticide. These girls and women are then forced to marry.

Economic injustice, leading men to migrate to major commercial cities where there are worthwhile employment opportunities, better pay and a comfortable life, is also an added factor. In order to meet the supply, all kinds of efforts are made by the suppliers which include offences such as abduction, kidnapping etc. Debt labour, even though not known much, is illegal and very much prevalent in our society.

Corruption, social inequality, cultural practices, regional gender preference, imbalance, weak enforcement machinery and inordinate delay in justice delivery are among other leading causes of human trafficking in India.

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Statistics regarding Human Trafficking of women and children in India

In Asia, India is reflected as the pivot of the crime of human trafficking. About 80% of this crime across the world is done for the purpose of sexual exploitation and the remaining is done for bonded labour. Trafficking is the 3rd largest organized crime in the world.

Women and children are the most vulnerable sections who get trapped being victims of human trafficking.

In 2016, 19,223 children and women were trafficked as against 15,448, the previous year, as per the Ministry of Women and Child Development. Last year 9,104 children were trafficked, a 27% increase from the previous year.

The National Crime Records Bureau revealed that nearly equal number of women and children had been trafficked.

It is in the eastern state of West Bengal where the highest number of victims have been recorded in our country.

As per the governmental statistics, a child goes missing every 8 minutes in India. About 35,000 children were reported missing in 2011.

So many of these victims, mainly belonging to rural, poor backgrounds are decoyed to cities and towns in India every year by traffickers who entice such persons by giving them false hope and assurances of good jobs, but on the other hand sell them into modern day slavery. A few end up as domestic workers or bonded labour, or are forced to work in small industries like the textile factories, farming or are even pushed into brothels where they are exploited sexually.

Consult:  Top Criminal Lawyers in India
 

Why do you need a Lawyer?

Sometimes the law and the legal framework can get confusing and difficult to understand, especially when the issue is regarding criminal law and its vast procedure. In such a scenario, one may not realize how to determine the legal issue, the area to which the issue relates to, whether the issue requires going to court and, how the court procedure works. Seeing a lawyer and getting some legal advice can enable you to comprehend your choices and can give you the legal view for you to determine your legal recourse.

An experienced attorney can give you expert advice on how to handle your criminal issue owing to his/her years of experience in handling such cases. A  criminal lawyer  is an expert on the laws and can help you avoid significant mistakes that may cause harm to reputation, cause you to be imprisoned for longer, or will require future legal proceedings to correct. You can also  ask a lawyer online  a free legal question using LawRato's Ask a Free Question service.



 

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