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Human Trafficking: The Greatest Ethical Challenge
Team SoOLEGAL 11 Jan 2022

Human Trafficking: The Greatest Ethical Challenge

Human trafficking is a big problem in India, despite the fact that it is illegal under Indian law. People are routinely trafficked illegally across India. Human trafficking is not only prohibited in India, but it is also unlawful worldwide. Human trafficking is the world’s third largest criminal sector, after drug trafficking and arms traffic. It is also the world’s fastest expanding criminal activity. Human trafficking of people, usually for the purposes of slavery, forced labor or commercial sexual exploitation for the trafficker or others. This unethical commerce and exploitation of human beings in the twenty – first century shows a sad condition of events that proves that human trafficking is today’s greatest ethical concern.

It depicts a contrasting picture of in equality among equals in terms of each individual’s right to choose his or her own life, as trafficked victims are forced to sell their innate freedom and are subjected to forceful enslavement. Their cries for aid are lost in a sea of unremitting tyranny and widespread apathy that has persisted for decades.

Human Trafficking entails the forced removal of a person’s dignity and self – worth in order to exploit the weak. Millions of people are trafficked in India each year both locally and internationally. Human trafficking is thought to be the fastest – growing business in the twenty – first century. This crime has an unimaginable human cost and is one of the most heinous aspects of modern society. Women and Children, unsurprisingly, make up the bulk of human trafficking victims in poor nations, since they are the most disenfranchised members of society. For men, women, and children trafficked for forced labor and commercial sexual exploitation, India has become a source, destination and transit county.

The United Nations Office for Drugs and Crime (UNODC) States that

·       51% Victims of trafficking are women, 28% children and 21% men.

·       72% people who are exploited in this industry are women.

·       63% of traffickers are men and 37% are women.

·       43% of victims are trafficked to different countries.

 

Constitutional & Legislative provisions related to Human Trafficking

·       Trafficking in Human Beings or Persons is prohibited by Article 23(1) of the Indian Constitution.

·       The Immoral Traffic (Prevention) Act, 1956 (ITPA) is the primary piece of legislation for preventing trafficking for commercial sexual exploitation.

·       The Criminal Law (Amendment) Act of 2013 went into effect, replacing Section 370 of the Indian Penal Code with Section 370 and 370(A) of the IPC, which provide for comprehensive measures to combat the menace of Human trafficking, including trafficking of children for exploitation in any form, including physical exploitation or any form of sexual exploitation, slavery, servitude, or the forced removal of organs.

·       The Protection of Children from Sexual Offenses (POCSO) Act, 2012, which took effect on November 14, 2012, is a unique legislation designed to protect children from sexual abuse and exploitation. It defines several types of sexual abuse, such as penetrative and non – penetrative sexual assault, as well as sexual harassment.

·       Other particular laws have been passed in relation to the trafficking of women and children. Apart from specific sections in the IPC, such as Section 372 and 373 dealing with the sale and purchase of girls for the purpose of prostitution, the Prohibition of Child Marriage Act, 2006, the bonded Labor System (Abolition) Act, 1976, the Child Labor (Prohibition and Regulation) Act, 1986, and the Transplantation of Human Organs Act, 1994.

·       State Governments have also passed legislation to address the issue. (Example – The Punjab Prevention of Human Smuggling Act, 2012)

Laws against Human Trafficking in India
There are various laws that deal with various types of trafficking, which are listed below:

1.     The Indian Penal Code of 1860 Human Trafficking is predominantly prosecuted in India under the Indian Penal Code, 1860.

 

The following are the key sections:

General Provisions:

·       Section 347 – Any person who unlawfully confines another person in order to extort money from them or force them to commit criminal conduct faces up to three years in jail and a fine.

·       Section 357 – Anyone who uses assault or criminal force to illegally restrict a person will be imprisoned for up to one year or fined up to one thousand rupees.

·       Section 363 – Anyone who kidnaps a person from India or from legitimate guardianship is subject to imprisonment for up to seven years and a fine.

·       Section 365 – Whoever kidnaps or abducts a person with the aim to covertly and unlawfully detain him or her is punishable by imprisonment for up to seven years and a fine.

·       Section 370 – This clause defines trafficking as ‘anyone who, for the purpose of exploitation, (a) recruits, (b) transports, (c) harbors, (d) transfers, or (e) receives a person or individuals,’ by: First, threats are used, secondly by force or other forms of coercion are used, and thirdly by abduction or kidnapping, or fourth by committing fraud or deception, or fifth by abusing power, sixth by the act of trafficking is committed by enticement, including the providing or receiving of cash or advantages, in order to obtain the permission of any person having control over the person recruited, transported, harbored, transferred, or received.

·       Section 506 – The penalty for criminal intimidation is imprisonment for up to two years, a fine or both.

Special Provisions
Sex Trafficking

·       Section 354(A) -  Any man who engages in the following acts:

                        i.         Physical Contact and approaches involving unwanted and explicit sexual overtures.

                      ii.         A demand or request for sexual favors.

                     iii.         The display of pornography against the will of a woman.

Shall be imprisoned for a period of up to three years or fined or both.

·       Section 376 – The penalty for rape is imprisonment for a term of not less than 10 years and up to life imprisonment, as well as a fine or both.

Forced Marriage

·       Section 366 – Anyone who kidnaps, abducts, or compels a woman to marry is punishable by up to 10 years in jail and a fine.

Minors

·       Section 366(A) – Procurement of a juvenile girl is punishable by imprisonment for up to 10 years in addition to a fine.

·       Section 366(B) – Importation of a female (under the age of twenty – one years) from a foreign nation is punished by imprisonment for up to 10 years in addition to a fine.

·       Section 370(4) – if the offenses include the trafficking of one juvenile, the punishment is imprisonment for not less than 10 years and up to life imprisonment, as well as a fine.

·       Section 370(5) – If the offenses include the trafficking of more than one juvenile, the punishment must be imprisonment for not less than 10 years, with the possibility of life imprisonment, as well as a fine.

·       Section 372 – Anyone who sells children for the purpose of prostitution or illicit intercourse with any person, or for any unlawful and immoral purpose, is subject to imprisonment for up to 10 years and a fine.

Slavery

·       Section 371 – Imports, exports, trafficking, purchasing, selling, and so on in slaves are punishable by life imprisonment or a period of imprisonment not exceeding 10 years, as well as a fine.

·       Section 374 – Unlawful obligatory labor against the person’s will is punishable by imprisonment for up to a year, a fine or both.

Aiding Human Trafficking

·       Section 368 – Anyone who illegally conceals or confines a kidnapped or abducted person must be punished in the same manner as the kidnapper or abductor himself, namely with imprisonment for up to 10 years and a fine.

·       Section 370(A)(1) – Whoever employs a trafficked juvenile in any way for sexual exploitation shall be punished with imprisonment for a time not less than five years, but which may extend to seven years, and may also be liable to fine.

·       Section 370(A)(2) – Whoever employs a trafficked person in any way for sexual exploitation shall be penalized with imprisonment for a time not less than three years, but not less than five years, and shall also be liable to fine.

·       Section 373 – Anyone who buys juveniles for the purpose of prostitution is subject to imprisonment for a term of up to 10 years, as well as a fine.

2.     Immoral Traffic (Prevention) Act, 1956
This Act deals with Human Trafficking for the purposes of Sexual Exploitation.

·       Section 3 – The punishment for running a brothel is imprisonment for a duration of not less than one year and not more than three years, as well as a fine of up to two thousand rupees.

·       Section 4 – The punishment for living on prostitution profits is imprisonment for a time of not less than one year and not more than three years, as well as a fine of up to thousand rupees. If a minor’s profits come from prostitution, the punishment is imprisonment for duration of not less than seven years and not more than 10 years.

·       Section 5 – Procuring, inducing or taking a person for the purpose of their prostitution, with or without their consent, is punishable by imprisonment for  term of not less than three years and not more than seven years, as well as a fine of up to two thousand rupees, and if committed against the will of any person, the punishment of imprisonment for a term of seven years is extended to imprisonment for a term of fourteen years.

·       Section 6 – Detaining a person on premises where prostitution is practiced is punishable by imprisonment for a term not less than seven years, but which may be for life, or for a term that may extend to 10 years, as well as a fine.

Aside from the foregoing, this Act punishes offences such as seducing or soliciting for the purpose of prostitution, prostitution in or near public areas, and seduction of a person in custody.

3.     The Constitution of India, 1949,

·       Article 23 – Human Trafficking and forced labor are illegal and penalized by law.

·       Article 24 – Stipulates that any kid under the age of fourteen must not engage in any dangerous occupation such as a factory or a mine.

4.     The Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018 (Lapsed)

The goal of this law was to combat human trafficking, provide protection and rehabilitation to victims of human trafficking, and prosecute criminals. It was passed in the Lok Sabha on July 26th, 2018, and was scheduled for passage in the Rajya Sabha, but it expired.

Other specific legislation relating to trafficking in women and children has been enacted, such as the Prohibition of Child Marriage Act, 2006, the bonded Labor System (Abolition) Act of 1976, the Child Labor (Prohibition and Regulation) Act of 1986, and the Transplantation of Human Organs Act of 1994.

 

Landmark Judgments on Human Trafficking

1.     People’s Union for Democratic Rights Vs Union of India (1982) 3 SCC 235
While discussing the scope of Article 23 of the Indian Constitution, the Supreme Court stated in this Judgment that “the word force must therefore be constructed to include not only physical or legal force but also force arising from the compulsion of economic circumstances which leaves no choice of alternatives to a person in want and compels him to provide labor or service even through the remuneration received for it is less than the minimum wage.”

2.     M C Mehta Vs State of Tamil Nadu (1996) 6 SCC 756
In this PIL, the Supreme Court outlined steps that should be implemented to assist child labor victims and their families. We are of the opinion that the offending employer should be asked to pay compensation of Rs. 20,000 for each child employed in contravention of the provisions of the Act; and the inspectors, whose appointments in envisaged by Section 17 to ensure compliance with the provisions of the Act, Should do this job, stated the Supreme Court.

The inspectors appointed under Section 17 would ensure that the employer pays Rs. 20,000 for each child worked in contravention of the Act’s requirements, which money would be put in a fund to be known as the Child Labor Rehabilitation – cum – welfare fund.

Even if the employer wishes to discharge the currently employed kid, his responsibility does not end there. It could be reasonable to establish such a fund on a district or region basis. The resulting fund will establish a corpus, the proceeds of which will be utilized only for the benefit of the kid in question. The quantum might be the interest gained in the corpus put in the name of the kid. Funds can be put in high – yielding schemes of any nationalized bank or other public agency to produce more revenue.

3.     Bachpan Bachao Andolan Vs Union Of India (2011) SCC (5) 1
In this case, the solicitor general of India argued that each state government should select an official who is in charge of enforcing child – related legislation. It was decided that no kid will be robbed of his fundamental rights provided by the Indian Constitution, which would lead to child trafficking and maltreatment.

Human Trafficking is Global Business
According to the ILO study, commercial sexual exploitation accounted for two – thirds of the anticipated total of US $99 Billion, while forced economic exploitation, which included domestic labor, agricultural, and other economic activities accounted for US $51 Billion, resulting in total earning of US $150 Billion.

·       Sexual exploitation accounts for 66 percent of human trafficking revenues, despite the fact that only 19 percent of victims are transported for sex. According to the organization for security and cooperation in Europe, the average yearly revenues made by each woman in forced sexual slavery ($100,000) are six times more than the average profits generated by each trafficking victim globally ($21,800). (OSCE)

·       According to OSCE research, sexual exploitation may provide returns ranging from 100% to 1000% while enslaved laborers can generate more than 50% profit even in less profitable sectors (e.g., agricultural labor in India).

·       Investigators in the Netherlands were able to assess the profit made by two sex traffickers from a large number of victims. According to the OSCE, one trafficker made $18,148 each month from four victims (for a total of $127,036), while a second trafficker earned $295,786 in the 14 months that three women were sexually exploited.

·       Forced labor saves money but sexual exploitation makes money Chinese kitchen workers in Germany were paid $808 for a 78 – hour work week in one occasion. According to the OSCE, a cook was entitled to $2,558 for a 39 – hour work week under German law.

Individual traffickers, family networks, small enterprises, and wide spectrum of criminal group operate and perpetuate the modern slave trade. Human trafficking is a major social issue since it has been shows to sever familial ties, fuel organized crime, exacerbate public health issues such as HIV/AIDS, and undermine the credibility of law enforcement and government organizations.

Human trafficking has risen to become the world’s third largest criminal industry and is rapidly expanding. Unfortunately, the majority of trafficking happens through the exploitation of vulnerable communities. The bulk of victims of human trafficking are abducted from less developed parts of the globe (Africa, South and Southeast Asia, Central and South America) and moved to more ‘profitable’ parts of the world. Nonetheless, wealthier countries are also concerned about human trafficking. The United States, for example, is both a destination country for international trafficking and a supplier of its own national trafficking networks.

Human trafficking’s financial gains have skyrocketed in the twenty – first century. The international Labor Organization estimated the yearly earnings of the human trafficking sector to be around $44 billion in 2005. Only 9 years later, in 2014, had the figure climbed to approximately $150 billion every year. The injustice of human trafficking is clearly working as a vast worldwide enterprise that can no longer be overlooked.

All of the money or revenue earned by people trafficking, which amounts to $150 billion, is used to support terrorists, acquire weapons, smuggle, bribe or engage in a variety of other illicit crimes. The money obtained by human trafficking is black money, which cannot be traced. This money may be spent for anything and anyplace because there is no record of it. Human trafficking as a business may support a variety of other illicit acts, making it critical to put an end to human trafficking.

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