20 NATIONAL LEGISLATIVE FRAMEWORK – HUMAN TRAFFICKING

Radhika Gupta

epgp books

 

 

Learning Outcomes

By the end of this chapter, students will be able to:

  • Understand the meaning of human trafficking, as understood under Indian and international law
  • Get an overview of the prevalence of human trafficking
  • View trafficking as a human rights issue
  • Understand international and Indian law provisions that aim to combat human trafficking
  • Distinguish trafficking from sex work
  • Understand the complexities involved in distinguishing trafficking from immigration

Introduction

 

Human trafficking refers to the forceful transportation of persons from one place to another. A number of women, men and children become victims of human trafficking every year. Trafficking is one of the most serious human rights violations taking place across the world. The issue of human trafficking raises complex questions around freedom of migration, the agency of women who choose to migrate and the conflation between sex work and human trafficking. This chapter will look at applicable international and Indian laws on human trafficking and examine some of these issues.

The Meaning of Human Trafficking

Human trafficking may be defined as “the acquisition of people by improper means such as force, fraud or deception, with the aim of exploiting them.” The United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (hereinafter UN Trafficking in Persons Protocol) entered into force in 2003, supplementing the United Nations Convention against Transnational Organized Crime. The UN Trafficking in Persons Protocol requires states to take measures to prevent and combat human trafficking, punish traffickers, and to protect and assist victims of trafficking, including by protecting their human rights. India became a state party to the treaty, thereby establishing legal obligations towards its domestic implementation on 5th May 2011.

Article 3, paragraph (a) of the UN Trafficking in Persons Protocol defines “trafficking in persons” as:

“the recruitment, transportation, transfer, harbouring 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.

Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.”

Thus, according to the UN Trafficking in Persons Protocol, to constitute human trafficking, the following three components must be present:

  • Act (recruitment, transportation, transfer, harbouring or receipt of persons).
  • By a specified means (threat/use of force or other forms of coercion, including false job promises, fraudulent marriages, kidnapping or sale of persons etc.
  • Resulting in exploitation.

Prevalence of Human Trafficking

It is an onerous task to approximate the number of trafficking victims in India and globally, due to the intrinsically secretive nature of this criminal enterprise. People may be trafficked for various purposes, including for prostitution; cheap forced labour in agriculture, industry, domestic work or begging; forced marriages or organ transplantation.

Common forms of trafficking include sex trafficking and labour trafficking. Sex trafficking is the trafficking of a person for the purpose of exploitation for involuntary commercial sex acts, prostitution or other forms of sexual exploitation. Labour trafficking refers to trafficking for the purpose of forced labour or services. Other forms of trafficking include the kidnapping/smuggling/deceiving of peoples in order to extract their bodily organs for sale on the black market. Both sex, labour and organ trafficking are prevalent in India, and the US state department recognises that India is a “source, destination, and transit country for men, women, and children subjected to forced labor and sex trafficking.” Even while sex trafficking, which is mainly limited to women and girls, is common in India, the majority of trafficked persons (including men, women, boys and girls) are trafficked for purposes of bonded labour. Persons trafficked for labour may be forced to work in industrial and agricultural sectors, including brick kilns, rice mills, cottonseed farms, carpet factories and embroidery factories.

In India, 90% of trafficking occurs domestically (intra-state or inter-state), and 10% occurs across national borders. The country serves as a destination for persons trafficked from neighbouring countries such as Nepal and Bangladesh, and as a transit country for individuals being trafficked to the Middle East and other parts of the world. In addition, India is a source country for individuals trafficked to Europe, the Middle East and North America.

Women and girls are especially vulnerable to trafficking, both for sex and labour. Many women and girls are denied education and their marriages are fixed at early ages. Denial of education and skill development opportunities and early marriages affect employment opportunities for women. Many women join agricultural work with their families or get employment in other unorganized sectors when required. Lack of education and good employment opportunities, and their marginalization make women and girls especially vulnerable to traffickers who may lure them with promises of better opportunities in other cities in India or abroad. For unmarried or widowed women who are ostracized by the community, financial necessity may lead them to accept perilous job offers, or they may be sold to traffickers by their families. Some women are also tricked through friendship or love relationships. Once trafficked, they are forced into labour or sexual exploitation.

 

SOME NUMBERS ON TRAFFICKING

 

  • A total of 18.7 million persons work as forced labour for private companies
  • Of this number, 4.5 million people (22%) are effected by sexual exploitation and 14.2 million (68%) by forced labour
  • Around 55% of the victims are women and girls

Source: “ILO Global Estimate of Forced Labour: Results and Methodology”, International Labour Office, Special Action Programme to Combat Forced Labour (SAP-FL). Accessed September 1, 2015.

 

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declaration/documents/publication/wcms_182004.pdf.

Trafficking as a Human Rights Violation

The trafficking of humans involves an array of human rights violations. The most prevalent ones are the right to life and personal liberty, the right not to be held a slave, the right to liberty and safety of one’s person, the right against harsh or inhumane treatment and the right to a safe and healthy working environment. Many of the practices associated with human trafficking, including bonded labour, forced prostitution, child labour and child marriage are prohibited under international human rights law. Human trafficking victims frequently face physical and emotional abuse, rape, threats against themselves and their family, and even death.

Besides these trafficking-related practices, human trafficking by itself constitutes a serious human rights violation. As per the report by the United Nations Office of the High Commissioner for Human Rights, “a general agreement has emerged within the international community that trafficking itself is a serious violation of human rights. For example, both the Council of Europe’s Convention on Action against Trafficking in Human Beings and the European Union Directive on preventing and combating trafficking in human beings and protecting its victims identify trafficking as a violation of human rights. The United Nations General Assembly and the Human Rights Council have repeatedly affirmed that trafficking violates and impairs fundamental human rights, as have many of the international human rights mechanisms.”

Furthermore, trafficking often tends to emerge in areas where many human rights deprivations are already rampant. Trafficking is more commonly prevalent in conditions with poverty, discrimination, violence and general insecurity due to conflict, political instability or otherwise. Such factors tend to encourage people to migrate, while also making them vulnerable to trafficking. For example, child trafficking is rampant in villages in India that suffer from acute poverty and socio-economic backwardness. Such conditions enable traffickers to lure children to leave their homes or convince their parents to sell them. Therefore, human rights deprivation could further endanger a person to trafficking.

NEPAL EARTHQUAKE AND TRAFFICKING

 

Nepal witnessed two major earthquakes in 2015 that claimed more than 8,000 lives. The vulnerable families have become targets for human traffickers, who are luring such families to give up their children on false promises of education and a better life. According to UNICEF, at least 245 children have been rescued from getting trafficked or illegally placed in care homes.

 

Source: Goldberg, Eleanor. “Hundreds of Children In Nepal Are At Risk For Trafficking After Earthquake. Here’s Who’s Helping” Huffington Post, June 23, 2015. http://www.huffingtonpost.com/2015/06/22/nepal-children-trafficking_n_7637776.html?ir=India&adsSiteOverride=in.

The issue of human trafficking has various dimensions and can be seen as criminal law, immigration and/or social welfare issue. However, it is important to adopt a rights-based approach towards human trafficking. Under a rights-based approach, “every aspect of the national, regional and international response to trafficking is anchored in the rights and obligations established by international human rights law.” This approach identifies the right holders (e.g. trafficked persons, persons who are vulnerable to trafficking and accused persons), their entitlements, corresponding duty bearers (e.g. state) and their obligations. Such an approach places obligations on states to identify all aspects of trafficking, including the underlying discriminatory and unjust practices that enable trafficking and take steps towards prevention and redressal. It requires states to formulate appropriate laws and policies, with the primary objective of promoting and protecting human rights. The human rights approach “works towards strengthening the capacities of rights holders to secure their rights and of duty bearers to meet their obligations”.

International Laws Against Human Trafficking

Considering the cross-border nature of human trafficking, international law is an important site for combating the practise. The UN Trafficking in Persons Protocol is a significant international law instrument to prevent, suppress and impose penalties human trafficking. The Protocol, as of August 2017 has 171 states party to it, and it imposes obligations on state parties to take measures to criminalize trafficking, prevent trafficking and protect victims of human trafficking.

Some of the obligations that the UN Trafficking in Persons Protocol imposes on state parties include:

a) To criminalize human trafficking

b) To protect the identity and privacy of victims of human trafficking

c) To ensure physical safety of trafficking victims present within the territory of the nation

d) To consider taking measures to permit trafficking victims to remain within the territory, whether temporarily or permanently

e) To take measures to provide for the physical, psychological and social recovery of trafficking victims

f) To facilitate and accept the return of persons who had been trafficked to other territories and to ensure the safety of the person in the process

g) To issue travel documents and other authorization as necessary to facilitate return of trafficked persons

h) To take measures to prevent and combat human trafficking and to protect trafficking victims, especially women and children, from re-victimization.

Further, two major international human rights conventions that refer to trafficking are the UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and the UN Convention on the Rights of the Child (CRC). Article 6 of the CEDAW requires states to take measures “to suppress all forms of traffic in women and exploitation of prostitution of women.” Article 35 of the CRC places an obligation on states to “prevent the abduction of, the sale of or traffic in children for any purpose or in any form.”

The CRC has issued several general comments highlighting the vulnerability of children to trafficking. In 2017 the Committee issued general comment 21 on children in street situations.

This comment stated:

“Children in street situations are particularly vulnerable to sexual violence and exploitation, and the Optional Protocol to the Convention on the sale of children, child prostitution and child pornography is particularly relevant for them. Gender-sensitive responses should be made by professionals who are trained in understanding the specific circumstances of children in street situations. Children may have ended up in street situations through trafficking for sexual or labour exploitation, and/or may be vulnerable to such trafficking, as well as trafficking for body parts, and other forms of exploitationonce they are on the streets.” Emphasis added.

At the European level two key policy documents to shape collective state practice with a view to ending human trafficking. A European Parliament Directive from 2011 directs all states within Europe to ensure that their law enforcement agencies cooperate with each other across borders to strengthen the fight against trafficking. The Directive recognises that “cross-border cooperation, including the sharing of information and the sharing of best practices, as well as a continued open dialogue between the police, judicial and financial authorities of the Member States, is essential”35 to reducing and ending human trafficking. The Directive also states that the Member States should promote regular training for officials likely to come into contact with victims or potential victims of trafficking in human beings, including front-line police officers, aimed at enabling them to identify and deal with victims and potential victims of trafficking in human beings.” And that training for law enforcement personnel, prosecutors and the judiciary is developed to ensure “[t]hose responsible for investigating and prosecuting such offences should also have access to the investigative tools used in organised crime or other serious crime cases. Such tools could include the interception of communications, covert surveillance including electronic surveillance, the monitoring of bank accounts and other financial investigations.” Such measures are clearly aimed at not only stopping the trafficking of persons into the European Union but also towards the enforcement of law and at securing successful prosecutions to act as a deterrent towards future practise.

Indian Laws Against Human Trafficking

Constitution of India

Under the Constitution of India, both fundamental rights and directive principles for state policy contain provisions which may be used to address the issue of human trafficking.  The Constitution affords all citizens basic fundamental rights, to be enforced in courts of law. Article 23(1)

expressly prohibits human trafficking and forced labour. It reads as follows:

Article 23. Prohibition of traffic in human beings and forced labour

  • Traffic in human beings and beggar and other similar forms of forced labour are prohibited, and any contravention of this provision shall be an offence punishable in accordance with law.
  • Nothing in this article shall prevent the State from imposing compulsory service for a 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.

In People’s Union for Democratic Rights v. Union of India, the Indian Supreme Court held that ‘force’ involved in “forced labour” could be “any factor which deprives a person of a choice of alternative and compels him to adopt one particular course of action”. This includes physical force, the force exerted through a legal provision for imprisonment or fine, and economic compulsion arising from hunger and want which may cause a person to accept remuneration less than the entitled minimum wage. Any labour or service compelled as a result of such a force shall be “forced labour” within the meaning of Article 23 of the Constitution.

Related provisions include Article 21, which guarantees the right to protection of life and personal liberty, and Article 43, which guarantees the right to a living wage and appropriate work conditions. Further, Article 21A imposes a duty on the state to provide free and compulsory education to all children between the age of six and fourteen years. In Bachpan Bachao Andolan v. Union of India, the Indian Supreme Court expressed concern over child trafficking and abuse and directed the government to rescue and rehabilitate children working in circuses and to check the violation of their fundamental rights, including Article 21A. Although the Constitution recognizes human trafficking as a punishable offence that violates fundamental rights, it is up to the legislature to prescribe punishment for that offence. Further, Article 24 of the Indian Constitution prohibits the employment of children under the age of fourteen years in any factory, mine or other hazardous employment. By trying to increase free access to education and limiting legally permissible employment for children some of the contributing factors which may increase a child’s likelihood to be trafficked are trying to be addressed.

The Constitution also includes directive principles of state policy, which cannot be directly enforced, but play a role in shaping state policy and legislation. Article 39(e) obligates the state to ensure that the “health and strength of individuals are not abused and that no one is forced by economic necessity to do work unsuited to their age or strength.” Article 39(f) states “childhood and youth should be protected against exploitation.”

Immoral Traffic Prevention Act (ITPA), 1956

The primary legislation for combating human trafficking in India is the Immoral Traffic Prevention Act of 1956 (ITPA). Before the 2013 amendments to the criminal law, it was the only legislation specifically addressing trafficking. However, the Act recognizes trafficking in persons not as a specific or separate crime, but as a prostitution-related crime and therefore doesn’t recognise the trafficking of persons for bonded/exploitative labour. Although the Act punishes the trafficking of women and children for commercial sexual exploitation, it does not define what trafficking is. An additional weakness is that the ITPA does not cover the trafficking of men.

Indian Penal Code

The Justice Verma Committee’s Report of 2013 on Amendments to Criminal Law highlighted the need for a provision in the Indian Penal Code (IPC) to address the offence of trafficking. The report notes that one of the main purposes of human trafficking is sexual exploitation of women and children. “Over time the sexual abuse becomes part of their life. It then gets termed as prostitution and then the abuse borders on being consensual.” The Committee has also indicated that the ITPA did not define trafficking thoroughly, as it only criminalized trafficking for prostitution. It suggested that the provisions of the IPC on slavery be amended to outlaw trafficking by threat, force or inducement. It also suggested criminalizing employment of a trafficked persons and taking measures for rehabilitation of trafficking victims.

In March 2013, India passed the Criminal Law (Amendment) Act of 2013, which amended Section 370 of the Indian Penal Code and included a definition of human trafficking largely based on the UN Trafficking in Persons Protocol. It defines “trafficking of person” as follows:

Criminal Law (Amendment) Act, 2013

370(1). “Whoever, for the purpose of exploitation, (a) recruits, (b) transports, (c) harbours, (d) transfers, or (e) receives, a person or persons, by

First.—using threats, or

Secondly.—using force, or any other form of coercion, or

Thirdly.—by abduction, or

Fourthly.—by practicing fraud, or deception, or

Fifthly.—by abuse of power, or

Sixthly.—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, harboured, transferred or received, commits the offence of trafficking.

The Section defines “exploitation” as including “any act of physical exploitation or any form of sexual exploitation, slavery or practices similar to slavery, servitude, or the forced removal of organs.”

Therefore, the Amendment Act is largely based on the definition of human trafficking in the UN Trafficking in Persons Protocol. This is a significant measure towards tackling human trafficking through criminal law in a comprehensive manner and in alignment with the UN Trafficking in Persons Protocol.

Protection of Trafficking Victims

Protection of the survivors is one of the major components of any trafficking programme designed through a human rights based approach. Protection of victims encompasses the activities of:

  • Rescuing
  • Repatriating
  • Rehabilitating
  • Reintegrating

It is otherwise called the ‘4Rs’ of protecting trafficking survivors. There are international, as well as national, organizations devoted to protecting survivors, developing prevention programmes and prosecuting traffickers. In the absence of a concrete policy framework, each organization provides services from their own perspective. In case of cross-border trafficking, coordination between agencies and organizations across nations also becomes important in order to ensure safe repatriation. The lack of a proper global policy framework for the protection of trafficking victims has led to further human rights violation of the survivors.

The status of trafficking victims as illegal migrants makes them even more vulnerable to exploitation. Trafficked persons are often stripped of their identity proofs and other documents. Law enforcement agencies tend to classify such persons as criminals, leading to their detention or deportment as illegal immigrants. The UN Trafficking in Persons Protocol particularly calls upon nations to concentrate on the protection of the human rights of victims and to assign measures for their physical, psychological and social recovery, while also allowing victims temporary or permanent residence in the countries of destination.

Jurisprudence and Other Issues Relating to Human Trafficking

In India, enforcement of laws relating to trafficking has been uneven and insufficient. This segment discusses such issues, exploring some of the conceptual problems in understanding and addressing trafficking.

Labour Trafficking

Trafficking for sexual exploitation dominates the discussion on human trafficking. The reason for this is that the sex industry is more visible than, for example, domestic servitude, labour trafficking or organ trafficking; and it is also economically less important than other industries that use trafficked workers. Indian laws and efforts against human trafficking have historically focused on trafficking for the purpose of sexual exploitation, despite the fact that majority of human trafficking in India is for use as forced labour. Thus, until the passage of the 2013 Amendment Act, the majority of human trafficking victims in India – namely those who had been trafficked for purposes of forced labour – were not recognized by law. As seen above, the ITPA, the major anti-trafficking law in India, dealt only with trafficking for the purposes of prostitution. Thus, victims of labour trafficking fell outside the purview of India’s trafficking laws.

Distinguishing Sex Trafficking from Sex Work

Anti-trafficking efforts in India are often based on a conflation between sex-work and sex trafficking. Sex trafficking refers to the movement of people, against their will, for purposes of sexual exploitation. However, sex-work may not always involve trafficking. Sex-work reflects an individual’s decision to engage in a sexual transaction, even if that choice may be driven by coercive circumstances, while sexual exploitation through trafficking occurs against the will of the victim. In the case of trafficking, a third party forces the man, woman or child into exploitative circumstances. All three elements as defined in the UN Trafficking in Persons Protocol (act, means and exploitation) are necessary to constitute trafficking.

However, it has been found that often enforcing agencies assume sex-workers are trafficking victims. Thus, anti-trafficking initiatives by enforcement officials concentrate on rescue and raid operations launched against sex-work brothels, often leading to intimidation, harassment and potential physical harm to sex-workers and their children.

Migration and Trafficking

Differentiating between trafficked persons and a large number of migrant labourers who move from one state to another within India or who move to/out of India from other countries in search of employment opportunities is complex. Migrant workers are vulnerable to being trafficked and may begin their journey voluntarily but end up being trafficked when they are unable to find adequate employment or the work for which they originally migrated dries up.

The reasons behind migration are complex and go beyond the economic goal of escaping from poverty. Many women migrate and may even be willingly smuggled/trafficked in search of better socio-economic conditions. Migrant smuggling involves a “business transaction between two willing parties involving movement across borders, usually by illegal means. It occurs with the consent of a person(s), and the transaction usually ends upon arrival.” As per the UN Office on Drugs and Crime, even while migrant smuggling may take place illegally and in dangerous conditions, it involves the consent of the person being smuggled, which is absent in case of trafficking. Further, while migrant smuggling ends after arrival at the destination, trafficking involves ongoing exploitation. These distinctions are often subtle and at times tend to overlap, and efforts to combat trafficking have witnessed conflation between migration and trafficking, especially in cases involving migration of women from the global south. The image of migrant women as poor, dependent and/or coerced has led to misguided legal responses focused on the rescue of such ‘victims of trafficking.’

Such misguided approaches have also facilitated the job of traffickers. An increase in irregular migration due to demand for cheap labour has provided traffickers with a market for services, such as fraudulent documents, transportation, aided border crossings and accommodations. However, instead of addressing trafficking holistically, the response has often been to put in place restrictions on free movement of labour, particularly of those who are most vulnerable to trafficking, i.e. women and children. With porous borders between countries like India and Bangladesh, even tight border controls are not able to check illegal migration. Tighter border control has caused migrants to take the help of smugglers or traffickers for transportation. Since undocumented migrants are illegal, they may fail to report abuse and exploitation.

Conclusion

The phenomenon of trafficking in persons comprises of a range of human rights violations. The causes behind trafficking are varied and complex. There is a need to develop a holistic human rights-based approach to prevent trafficking, punish traffickers and protect and rehabilitate the victims of trafficking. There is also need to inform the relevant laws and policies with the complex realities existing on the ground.

India has moved in the right direction by amending its criminal laws to define human trafficking in a manner that is largely in line with the defining provided in the UN Trafficking in Persons Protocol. Now, there is a need to back this law with appropriate machinery in order to ensure the protection and promotion of human rights.

Summary

  • Human trafficking is the acquisition of people by improper means such as force, fraud or deception, with the aim of exploitation.
  • Trafficking of humans involves an array of human rights violations, including violation of the right to life and personal liberty, the right not to be held a slave, the right to liberty and safety of one’s person, the right against harsh or inhumane treatment and the right to a safe and healthy working environment.
  • The UN Trafficking in Persons Protocol is a significant international law instrument to prevent, suppress and punish human trafficking. It imposes obligations on state parties to take measures to criminalize trafficking, prevent trafficking and protect victims of human trafficking.
  • The Constitution of India prohibits human trafficking and forced labour.
  • ITPA was the only statute that directly addressed trafficking in India, before the 2013 Criminal Law Amendment Act by the Justice Verma Commission.
  • Section 370 of the Indian Penal Code has included a definition of human trafficking that is largely based on the UN Trafficking in Persons Protocol.
  • Efforts to combat trafficking have largely focused on sex trafficking and ignored labour trafficking.
  • Migration and migrant smuggling are not the same as human trafficking; nor is sex work and sex trafficking. But these tend to overlap quite often.
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Reference

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