HUMAN TRAFFICKING PARUL SHARMA Parul2000sharma@gmail.com 7065041790 Human Trafficking • Introduction Human trafficking is mostly referred to as to the process by which an individual or individuals is transported illegally from one area or country to another, for economic purposes. The trafficking of women, men and even children is done for various purposes such as for labour used in factories, or households. Some are even trafficked for sexual exploitation as well. This crime happens all over the world and affects every region or area it is happening in. Although the reason behind this crime is still known, poverty, cheap labour, violence can be seen as some of the common causes of this crime. This issue not only is found in one country but is spread internationally and hence a legal framework was formed regarding this issue and also it was observed how trafficking results in the violation of human rights and to prevent this violation, many countries implemented acts or statutes against trafficking. Further, the article explains what is human trafficking and how it is dealt with in India and internationally and the related human rights is with human trafficking. • Human Trafficking The definition of Human Trafficking was very recent. In the late 1990s, the states started the task of separating human trafficking from other such practices with which it was related. The very first definition of trafficking was inserted in the 2000 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (Trafficking Protocol). The definition given is as follows: (a) “Trafficking in persons” shall mean 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; (b) The consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used; The key elements that are to be present in human trafficking are: ➢ Action - this includes buying, selling or recruitment ➢ Means - this refers to how that action happened, maybe by giving threat or forcefully. ➢ Purpose - this is the most essential element as it tells that the act done was for the purpose of human trafficking. But these elements are different in cases of trafficking in children i.e. persons under 18 years. The element of means is not necessary to be proved here. Only action and purpose are needed to be shown. The key features of the international legal understanding of trafficking are as follows: 1) Trafficking affects all and involves a wide range of exploitative practices - Originally, it was believed that trafficking was the movement of women and girls only but the international definition above made it clear that even men and boys can be trafficked for exploitative purposes. 2) Crossing an international border isn't required in Trafficking - The definition covered cross-border, as well as internal trafficking and hence trafficking, can be possible within a single state or country. 3) No Consent possible to trafficking - Usually, the consent is considered as irrelevant of the personal freedom of a person is taken away. Also, it was noted by the drafters of the Protocol that whenever it is proved that deception, force, coercion or any other prohibited means was used, then consent is irrelevant and thus cannot be used as a defence.1 4) Trafficking doesn’t always require movement - The definition explains that the movement as just one way that the "action" element is satisfied. But terms like "receipt" and harbouring" not just refer the process where a person is moved in a situation of exploitation but also refers to the maintenance of that person. Although these elements of trafficking are basic but more elements are added while dealing with different conditions in each country and thus apply laws and rules according to it. Let’s see how it is dealt in India. • Human Trafficking in India Human trafficking in India is the purchase and sell of human beings as well but the main purpose of this is for forced labour, sexual slavery, prostitution or any type of exploitation. Not only women and children but even men are subject to human trafficking.. In India, a large number of people are trafficked not only for sex trade but also for other various kinds of servitude. The people under trafficking might be made to believe the trafficker and think that he will provide them a job rather that person is sold away by the trafficker. Some of the causes of Human Trafficking that are observed in India are as follows: ➢ Social inequality, imbalance, corruption and regional gender preference are main causes of Human Trafficking in India. ➢ Parents of tribal areas send their kids to cities in order to get a better life in terms of education and safety ➢ Debt labour is not much known but it is still illegal and also exist in India. ➢ Suppliers can go to any extent in order to fulfil the supply, such as abducting. ➢ Economic injustice and poverty is the most easily visible cause of trafficking. ➢ Men also migrate to commercial cities for work. 1 Legislative Guides for the Implementation of the United Nations Convention against Transnational Organized Crime and the Protocols Thereto (United Nations publication, Sales No. E.05.V.2), p. 270 ➢ Girls and women are also trafficked like a commodity in regions where female ration is less than male due to female infanticide and then those women are forced to marry. According to estimates, human trafficking in India affects 20 to 65 million people. India is known as the hub of this crime in India. Around 80 per cent of human trafficking is done for sexual exploitation.2 According to the Ministry of women and child development, 19,223 children and women were trafficked in 2016 which was much larger than 15,448 i.e. the number in 2015.3 The problem has extended too much that if taken an estimation there are 40 million victims per year and 20% are children. According to UNODC statistics from 2019, the majority of trafficked children were used for sexual exploitation. Sexual exploitation of the children for any country is worse than any other offence against the children. This term sexual exploitation of children refers to criminal practices that demean, degrade and threaten the physical and psychological integrity of children, in particular, sexual abuse by an adult and payment in cash or kind to a child or third person. Legal Framework: For this crime of Human trafficking, India has a huge range of laws enacted by the Parliament and some State legislature, apart from provisions of the Constitution which is the basic law of the country. ➢ Constitution of India Article 23- Protects against exploitation, prohibits traffic in humans and beggar and makes this practice punishable under law. 2 https://www.dianova.org/opinion/human-trafficking-inindia/#:~:text=According%20to%20estimates%2C%20human%20trafficking,skewed%20in%20favour%20of%20 men. 3 https://www.lawnn.com/human-trafficking-india/ Article 24- Protects children below age 14 from working in factories, mines or other hazardous employment. ➢ Indian Penal Code There are around 25 provisions for trafficking in IPC but some of the most significant among them are as below- Section 366A- Inducing any minor girl under the age of 18 years to go to any such place with intent to forced or seduced illicit intercourse with another person shall be a punishable offence. Section 366B- Importing any girl under twenty-one years with the intent that she will be, forced or seduced to illicit intercourse with another person is a punishable offence. Section 374- Punishes any person who for unlawfully compels any person to labour against his will. ➢ Immoral Traffic (Prevention) Act 1956 The Immoral Traffic (Prevention) Act, 1956 is the main legislation for the prevention of sexual exploitation for women and girls. The term “Trafficking” is defined only by the Goa Children’s Act, 2003, which is a state law. Thus, while the ITPA is the main legislation related to the commercial sexual exploitation of children, it does not define trafficking. Offences specified are: o Keeping a bordello or allowing premises to be used as a bordello o Living on the earnings of prostitution o Attempting, contriving or taking person for the sake of prostitution o Detaining any person in premises for prostitution o Prostitution in the vicinity of public places o Seduction of a person in custody ➢ Child Labour (Prohibition and Regulation) Act, 1986 This Act outlaw employment of children below a specific age and in certain specified jobs or occupations and imposes punishment for the employment of minor children. ➢ Information Technology Act, 2000 The act penalises transmission of any such material in electronic form which is inappropriate and lascivious. This act also addresses the problem of pornography. Section 67A- Punishes publication or transmission of material containing sexually explicit act in electronic form. Section 68B- Punishes publication or transmission of material portraying children in a sexually explicit act in electronic form. ➢ Juvenile Justice Act, 2000 This law is for the children who are vulnerable and are most likely a victim of trafficking. It also provides care and protection to the juvenile in need. ➢ Karnataka Devadasi (Prohibition of Dedication) Act, 1982 Act of dedication of any girl no matter with or without consent of the dedicated persons engaging her in prostitution is unlawful and punishable. ➢ Andhra Pradesh Devadasi (Prohibiting Dedication) Act, 1989 This law forbids any ceremony that is dedicated as Devadasi in any manner and imposes a penalty of imprisonment for three years and fine. ➢ Goa Children’s Act, 2003 This act is defined precisely in Trafficking. It consists of every type of sexual exploitation in the definition of sexual assault. Owner and Manager of this establishment are responsible for the safety of minors or children in any hotel premises. There are strict laws for the safety of children and publishing pornographic materials. Measures taken by Indian Government against Human Trafficking in India: With a purpose to handle the menace of human trafficking, Ministry of Home Affairs, Government of India has taken a number of measures such as: 1. Anti-Trafficking Cell (ATC) This was set up in Ministry Of Home Affairs in 2006 so as to act as the main point for communicating various decisions and look up to action taken by State Government to fight against the crime of Human Trafficking. 2. Advisories To enhance the effectiveness in handling the crime of human trafficking and to increase the responsiveness of the law enforcement, Ministry of Home Affairs (MHA) issued following advisories to all States or UTs: - Ministry of Home Affairs' scheme MHA under a comprehensive Scheme strengthen law enforcement in India against Trafficking in humans through training and capacity has released funds for Anti Trafficking units in 270 districts of the country. - Strengthen the capacity building To improve the capacity building of law enforcement agencies and create awareness among them, various Training workshops were held throughout the country, for Combating Trafficking in Human beings for Police officers and even for Regional level prosecutors, along with State and District level. - Judicial Colloquium This is held at the high court level and its aim is to sensitize the judicial officers about the issues concerning human trafficking and also to ensure a speedy court process. • International Instruments Concerning Human Trafficking The crime of trafficking in person is considered a huge crime all over the world and to combat with it many instruments were established. The most important instrument is the Palermo Protocol which is a supplement to the Un convection against Transnational Organized Crime. Article 5 of the Protocol wants States to criminalize trafficking or attempting it or even any other participation in such act. Also, two international Labour Organization convections focuses on forced labour. Some instruments related to the trafficking of women included the Convention on Elimination of all forms of discrimination against the women which requires the states to take all the possible and appropriate measures to prevent or suppress all forms of trafficking in women and exploitation of women for prostitution. Some international instruments concerning child trafficking include The convention of the Rights of Child (1989), and the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography (2000) stop the trafficking in children. Article 39 of CRC states that that States need to take all appropriate measures to promote psychological as well as physical recovery and reintegration pf the child who has been the victim of any form of abuse, exploitation. Additionally, the ILO’s Worst Forms of Child Labour Convention (1999) prohibits perpetrators from using children under 18 years of age for all type of slavery or practices similar to slavery, trafficking, serfdom, debt bondage, forced or compulsory labour, and prostitution.4 Some more Conventions for human trafficking are: 1. the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (1990) 2. The International Covenant on Civil and Political Rights (ICCPR) 3. The Declaration on the Elimination of Violence Against Women, 1993 4. The Convention on Consent to Marriage, Minimum Age for Marriage and Registration for Marriages- Convention enforced with effect from 9th December 1964 4 https://www.ohchr.org/Documents/Issues/Women/WRGS/OnePagers/IntInstrumentsconcerningTraffickingp ersons_Aug2014.pdf • Relationship Between Human Rights and Human Trafficking The relation between human rights and the fight against Human Trafficking is very well established. From the starting, human rights law has absolutely proclaimed the fundamental immorality and unlawfulness of a person appropriating the legal personality, labour or humanity of another. Human rights law has forbidden discrimination on the basis of sex and race. Also, it has demanded equal or at least a few key rights for non-citizens. A human rights approach to trafficking means keeping victims as the centre of antitrafficking policies by prioritizing the protection of their rights. By this approach, the reason of trafficking becomes irrelevant. A key component of a human rights approach is providing equal protections to all victims of trafficking, no matter what their gender, age, or field of work is. All victims are entitled to have an equal approach to aid protection, mechanisms, and justice, and even to the choice to access these services in any way that they want so as not to have their agency compromised (ie, not being obligated to testify in criminal proceedings). Hence, policy responses should be taken into consideration the often-gendered nature of trafficking and sufficiently compensate for any gender-based discrimination in terms of access to aid and justice. In addition to ensuring these rights to all the trafficking victims, other antitrafficking policies which include criminal prosecutions and migration regulations must not violate human rights in the process. 5 OHCHR is at the vanguard of combating trafficking with help of application of a human rights-based approach. This approach was principally conceptualized in a document called "soft-law" - the Recommended Principles and Guidelines on Human Rights and Human Trafficking. OHCHR gives support to the special procedures of the Human Rights Council which are related to trafficking and violations of human rights, such as the Special Rapporteur on trafficking in persons, especially women and children; the Special Rapporteur on the sale of children, child pornography and child prostitution; and the Special Rapporteur on contemporary forms of slavery, including its causes and its consequences. 5 https://ourworld.unu.edu/en/a-human-rights-approach-to-human-trafficking Those mandates play an essential role in supporting a human rights-based approach to addressing the violations falling under their mandates. OHCHR also manages the United Nations Voluntary Trust Fund on Contemporary Forms of Slavery which was established in 1991 by the General Assembly. The Fund provides victims small-sized grants who are contemporary forms of slavery. It is estimated that 60% of the grants are awarded to victims of trafficking. • Conclusion Human trafficking is not just any simple crime but a grave and heinous crime which is affecting whole world. Not just it is causing physical hurt to the victims but these victims are traumatized for all of their life. Some victims’ mental health can even get worse. Also, the small children who are trafficked for sexual purposes lose their childhood because of human trafficking. It’s time for all the countries to combat this crime of trafficking in people by all using all the legal convections provided and not just talk about that but get the in action as quick as possible so that this crime can slow and decrease with the time passing.
