The present research paper aims at touching one of the most sensitized issues in the human society, that is, human trafficking. What is human trafficking? How is it done? Why humans are made victim to such a menace? What are the different forms of human trafficking? What are the causes and the impact of human trafficking on individuals and society? All the questions will be answered in this research paper. In addition to this, we will also talk about the international conventions and protocols such as – Palermo Protocols; UN Convention against Transnational Organized Crimes, 2000; Council of Europe Convention and EU Directives along with the role of UN High Commissioner for Refugees and International Labor Organization. We will also take a brief look at the Indian national legal framework relating to human trafficking like – Indian Penal Code, 1860; Immoral Traffic Prevention Act, 1956; Constitution of India; Information and Technology Act, 2000. After all this, we will go through the Anti – Trafficking Bill, 2018 which is currently in the Parliamentary Standing Committee for re-consideration. We will talk about the loopholes in the bill by closely critiquing it and answer the question, that is, what are the Victim Compensation and Witness Protection Schemes or are there even any, at subsequent stage. Besides, we will take a glance at some of the important and landmark cases and judgments which are adding to the development of human trafficking laws. At last, we will sum up our discussion by giving up some of the suggestions and recommendations that are needed to be taken into consideration in the upcoming Anti – Trafficking Legislations and also to eliminate this despicable evil from the lives of the individuals to make this world a better place for living.
KEYWORDS – Human Trafficking, international legal framework, cases, judgments, Anti – Trafficking Bill 2018, Palermo Protocols.
“People were created to be loved. Things were created to be used. The reason why the world is in chaos is because things are being loved and people are being used.”
-Unknown
These two lines are very well depicting the current situation of our human society. The people are not loved but used. They are being sold in the same manner as the commodities are sold. And, this is the reason why the world is in so much chaos. All the humans are born with certain rights. In the general parlance, we call those rights as human rights. Each and every person enjoys these rights by virtue of being human. And, it is the obligation of the people to respect each other’s rights. Here, the question arises is that are we really fulfilling our duty? Do we really respect the rights of other humans? Is this the kind of humanity that we are talking about these days? Why do we call ourselves as humans even? To answer all such questions, it is expedient to have an understanding about one of the organized crimes that leads to the grave violation of human rights, that is, human trafficking.
Before starting with the concept of human trafficking, let us first start quoting some facts and figures relating to the same to have an idea about the terrible situation across the globe. According to International Labor Organisation,
At any given time in 2016, an estimated 40.3 million people are in modern slavery, including 24.9 million in forced labor and 15.4 million in forced marriage.
It means there are 5.4 victims of modern slavery for every 1000 people in the world.
1 in 4 victims of modern slavery are children.
Out of the 24.9 million people trapped in forced labor, 16 million people are exploited in the private sector such as domestic work, construction or agriculture; 4.8 million persons in forced sexual exploitation, and 4 million persons in forced labor imposed by state authorities.
Women and girls are disproportionately affected by forced labor, accounting for 99% of victims in the commercial sex industry, and 58% in other sectors.
These figures are horrible and insane. But this is what it is! And, the dangerous thing is that these figures are increasing tremendously. This is high time that we should have stricter laws and legislations to combat this global issue of human trafficking.
WHAT IS HUMAN TRAFFICKING?
Merriam Webster Dictionary defines the word “human trafficking” as “an organized criminal activity in which human beings are treated as possessions to be controlled and exploited (as by being forced into prostitution or involuntary labor).” This definition gives us a very narrow understanding as it mainly talks about only two aspects of human trafficking – “prostitution” and “forced labor”. There are many more aspects which are related to human trafficking. All these aspects are defined by an international protocol, that is, Palermo Protocols.
Article 3(a) of Palermo Protocols defines, “Trafficking in persons” shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of 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 giving or receiving of payments or benefits to achieve the consent of a person having control of 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 labor or services, slavery or practices similar to slavery, servitude or the removal of organs.”
We can conclude the above definition by answering three major questions:
What is done?
The recruitment, transportation, transfer, harbor, or receipt of persons.
How is it done?
It is done by creating threat, use of force, coercion, abduction, deception, inducement of alluring payments.
Why is it done?
It is done for exploitative purposes like sexual activities, slavery, bonded labor, organ removal, forced marriage, child soldiers, and what not.
Human Trafficking refers to the trading of persons or quid pro quo of persons for illegal purposes. It is recognized as an organized crime and also known as modern-day slavery.
FORMS OF HUMAN TRAFFICKING
There are numerous ways by which people are trafficked and exploited to execute the heinous crime of human trafficking. Let us have a brief discussion about the same.
ORGAN HARVESTING
The trafficking in organs involves removing a part of the body, commonly kidneys and liver, for the purposes of illicit trading. The trading of organs is increasing day-by-day at international levels. In this techno-savvy world, as the technology for transplantation of organs is increasing, the organ trafficking is also rising up. A victim, either forcefully or freely, gives the consent for the organ removal because they are in the need of money, but are then cheated, or are paid less than the promised price.
FORCED MARRIAGE
Forced Marriage is when one person or both the persons are put under pressure to marry someone or to marry each other respectively against their will. The consent in such cases is obtained fraudulently or by undue influence or by coercion. Generally, the objective of forced marriage is either to take individual outside the country or to gain access in a country for some illegal purposes.
SENDING CHILDREN IN WARS
The one of the most vulnerable groups of human trafficking are children because it is easier to manipulate them. They do not have developed sense of danger and they can be easily recruited to the armed conflicts as soldiers. They may be used either for frontline combat by engaging them directly in the acts of violence or within auxiliary roles of informants. This type of practice is most prevalent in parts of Africa and Asia.
LABOUR EXPLOITATION
This refers to the situation where people are coerced to work, either voluntary or involuntary, in hazardous conditions. Due to lack of employment opportunities in their region, they tend to migrate from their inhabitant areas to the place of work. And, they are generally engaged in factories, mines, industries where they are not paid even minimum wages for their work. Moreover, they are not allowed to leave their workplace. This is one of the main reasons why illegal immigration is heading up. Debt Bondage and Child Labor form the parts of forced labor.
DRUG TRAFFICKING
Drug Trafficking refers to the cultivation, manufacturing, distribution and sale of the substances which are restricted by the Drug Prohibition Laws. Children are made soft targets to smuggle illegal drugs from one place to another.
SEX TRAFFICKING
Sex Trafficking is when an individual engages in a commercial sex act as a result of force, fraud or coercion. Sexual exploitation occurs in various settings including brothels for prostitution purposes, pimping, strip clubs, massage parlors, private homes, sex tourism, pornography, mail order brides or bride trafficking and many more. Women and Children are the most common victims of sex trafficking. LGBT identifying individuals, especially transgender, are increasingly found to be victim of sex trafficking.
SLAVERY
The word ‘slavery’ refers to the conditions where people are treated as the property of another person, household, company, corporation or government. This is the status of a person over whom ownership rights are exercised. Slaves are held against their will from the time of their capture, purchase, or birth, and are deprived of the right to leave, to refuse to work, or to receive compensation in return for their labor. Forced domestic servitude also forms the part of slavery where people are forced to work for long hours for little pay. They may also suffer physical and sexual abuse.
FORCED CRIMINALITY
This is when somebody is forced to carry out criminal activity through coercion or deception. It includes begging, pick-pocketing, bag snatching, ATM theft, selling of counterfeit goods and all. Mostly, children are exposed to the vulnerability of forced criminality.
These crimes are happening in every corner of the world and can include any person regardless of age, socio-economic background or location. Women, children and transgender are the most vulnerable groups exposed to human trafficking. As a result, each form can look very different. The statistics of these crimes are rising at an alarming level despite of having so many legislations, both at national and international levels, to combat this global issue.
HUMAN TRAFFICKING: CAUSES AND EFFECTS
To effectively understand the concept of human trafficking or modern slavery, we must first understand what causes it and how it affects those involved. The root cause of human trafficking is traffickers. But what attracts traffickers to do such type of crimes? The answer is simple. It is the vulnerability that creates opportunity for traffickers. Now, the major question arises that what are vulnerable conditions and actually who falls prey to such crimes?
The conditions are – poverty; unemployment; displacement due to wars, political instability, and natural disasters; lack of education and knowledge; poor and broken family conditions; social and cultural practices; inadequacy of proper legislations and law enforcement agencies. The vulnerable groups include women, children, and LGBTQ communities, undocumented migrant persons, poverty-stricken and downtrodden. It is easy to manipulate these people and traffickers are trained to identify vulnerability. That’s why; these people become the soft-targets of these heart-core traffickers.
The effects of human trafficking are too harsh to handle for the victims. It has the power to impact someone’s life forever. The consequences are not only limited to the extent of physical trauma but also comprise mental, psychological and sociological harms. The physical trauma includes sexually transmitted diseases, diabetes, cancer, injuries, infections, and other illnesses. A lack of proper medical care allows these conditions to spread and worsen often affecting an individual’s health permanently. It also has a severe impact on the mental health and social life of the victim, including, depression, stress, memory loss, anxiety, fear, guilt, shame, difficulty in relationships, isolation from the society and many more.
Not only victims, but the traffickers are too affected by the outcomes of human trafficking. The traffickers also experience trauma because of what they see and do to others, and many traffickers have been victimized themselves at some point in their lives.
INTERNATIONAL LEGAL FRAMEWORK
There are a number of laws and legislations that are adopted by international forums in order to combat the menace of human trafficking. Let us have a brief look about the major international legislations.
The United Nations Convention against Transnational Organized Crime (UNTOC), Adopted by General Assembly resolution 55/25 of 15 November 2000, is the main international instrument in the fight against transnational organized crime. The Convention is further supplemented by three Protocols, which target specific areas and manifestations of organized crime. Countries must become parties to the Convention itself before they can become parties to any of the Protocols. The three Protocols are as follows:
The Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children (2003), is the first global legally binding instrument with an agreed definition on trafficking in persons. Article 3(a) talks about the definition of trafficking in persons and Article 3(b) states that ‘consent’ becomes irrelevant when the child is below 18 years of age. Also, Article 5 tells us about the criminalization.
The Protocol against the Smuggling of Migrants by Land, Sea and Air (2004), deals with the growing problem of organized criminal groups to smuggle migrants, often at high risk to the migrants and at great profit for the offenders.
The Protocol against Illicit Manufacturing of and Trafficking in Firearms, their Parts and Components and Ammunition (2005), is the first legally binding instrument on small arms and its purpose is to promote, facilitate and strengthen cooperation among State Parties in order to prevent, combat and eradicate the illicit manufacturing of and trafficking in firearms, their parts and components and ammunition.
The Universal Declaration of Human Rights of 1948, which declares in Article 4 that “No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.”
The International Covenant on Civil and Political Rights of 1966, in Article 8 states that “(1) No one shall be held in slavery; slavery and the slave trade in all their forms shall be prohibited. (2) No one shall be held in servitude. (3) No one shall be required to perform forced or compulsory labour.”
The Convention to Suppress the Slave Trade and Slavery of 1926, which states in Article 2 that the parties agreed “to prevent and suppress the slave trade and to progressively bring about the complete elimination of slavery in all its forms.”
The Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery of 1956, which states in Article 3(1) that “the act of conveying or attempting to convey slaves from one country to another by whatever means of transport, or of being accessory thereto shall be a criminal offense under the laws of the States Parties to this Convention and persons convicted thereto shall be liable to very severe penalties.”
The Convention for the Suppression of the Traffic in Persons and of the Exploitation of Prostitution of Others of 1949. The Preamble to this Convention provided that “Whereas prostitution and the accompanying evil of traffic in persons for the purpose of prostitution are incompatible with the dignity and worth of the human person and endanger the welfare of the individual, the family and the community.” Article 17 thereof provides that States parties are required to “undertake, in connection with immigration and emigration, to adopt or maintain such measures ASE are required, in terms of their obligations under the present Convention, to check the traffic in persons of either sex for the purpose of prostitution.”
The Convention on the Elimination of All Forms of Discrimination against Women of 1979, which, in Article 6, calls upon States parties to “take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women.”
The Declaration on the Elimination of Violence against Women of 1993, which defines “violence against women” to include “rape, sexual abuse, sexual harassment and intimidation at work, in educational institutions and elsewhere, trafficking in women and forced prostitution.”
The Convention on the Rights of the Child of 1989, which states that States parties must “take all appropriate national, bilateral and multilateral measures to prevent the abduction of, the sale of or traffic in children for any purpose or in any form.”
The Optional Protocol to the Convention on the Rights of the Child, on the Sale of Children, Child Prostitution, Child Pornography of 2000.
The Optional Protocol Stipulates, in Article 10, that States parties must “take all necessary steps to strengthen international cooperation by multinational, regional and bilateral agreements for the prevention, detection, investigation, prosecution and punishment of those responsible for acts involving the sale of children, child prostitution, child pornography and child sex tourism.”
The Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict of 2000. The Optional Protocol requires States parties to ensure that “persons who have not attained the age of 18 years are not compulsory recruited into their armed forces.”
The ILO Convention No 182 on the Elimination of the Worst Forms of Child Labour of 1999, which provides in Article 3 “all forms of slavery or practices similar to slavery such as the sale and trafficking of children.”
The Convention on the Rights of All Migrant Workers and Members of their Families of 1990, which in Article 11 provides that “No migrant worker or member of his or her family shall be held in slavery or servitude or required to perform forced or compulsory labor.”
Despite of having numerous legislations at international level, the basic rights rather human rights are at abysmal. This should be the first priority, or we should say, this is the need of the hour to tackle the crisis of human trafficking.
HUMAN TRAFFICKING: INDIAN LEGAL FRAMEWORK
After having a discussion about international legal framework relating to human trafficking, it becomes important to talk about the Indian laws and legislations as well. India has recognized human trafficking as one of the major issues and to control the same, it has enacted various laws. Let us take a glance at these laws.
Constitution of India guarantees certain fundamental rights to its citizens and it is the duty of the State to protect these rights. According to Article 23(1), “trafficking of human beings and beggar and other similar practices are punishable offence under the law.” In the similar manner, Article 24 “prohibits employment of children below 14 years of age in factories, mines, or other hazardous employment.” “Right to Life and Personal Liberty” guaranteed by Article 21 is also infringed because of human trafficking.
Indian Penal Code, 1860 has around 25 provisions which talk about trafficking and made it a punishable offence. The significant provisions Section 370 and Section 370A provide for comprehensive measures to combat the organized crime. It also includes trafficking of children for exploitation in any form – physical, sexual, slavery, servitude, or the forced removal of organs.
The Immoral Traffic (Prevention) Act, 1956 is the primary legislation related to the commercial sexual exploitation of children, women and girls, but it does not define trafficking. Keeping a brothel or allowing premises to be used as a brothel or prostitution in the vicinity of the public places are some of the offences specified in ITPA, 1956. Also, Section 372 and Section 373 deals with the selling and buying of girls for the purpose of prostitution.
Information Technology Act, 2000 penalizes the publication or transmission of inappropriate or lascivious material in electronic form which depicts children in sexual explicit act or pornography. Section 67A and Section 68B are the relevant sections to discuss when we talk about human trafficking.
As per Section 2(14) (ii) and (ix) of Juvenile Justice (Care and Protection of Children) Act, 2015 talks about children who are found working in contravention of labour laws for the time being in force or is found begging, or living on the street and who is found vulnerable and is likely to be induced into drug abuse or trafficking is included as a “child in need of care and protection”, among others.
Protection of Children from Sexual Offences (POCSO) Act, 2012 is a special law to protect children from sexual abuse and exploitation. It also provides various precise definitions of sexual abuse, penetrative and non-penetrative sexual assault, sexual harassment and all.
Child Labour (Prohibition and Regulation) Act, 1986 defines a child as a person who has not completed the age of 14 years. The Act provides the provisions to regulate the working hours and working conditions of the child workers and also protects them from being employed in hazardous industries.
The other important legislations related to trafficking in persons are – Prohibition of Child Marriage Act, 2006; Bonded Labour System (Abolition) Act, 1976; Transplantation of Human Organs Act, 1994.
Apart from all these legislations, different State Governments have also enacted the laws in order to deal with this issue. The Punjab Prevention of Human Smuggling Act, 2012; Karnataka Devadasi (Prohibition of Dedication) Act, 1982; Goa Children’s Act, 2003; Andhra Pradesh Devadasi (Prohibiting Dedication) Act, 1989 are some of the major State legislations.
From time-to-time, India has enacted various legislations to handle the rising rates of human trafficking and also to obligate with the international instruments. But are these laws enough? Yes, these laws are sufficient from the perspective of working independently. Then, why these laws are not capable of tackling the rising number of human trafficking in India? If we talk about the figures, then, according to National Crime Records Bureau, 8132 human trafficking cases were reported in India in 2016 under the Indian Penal Code, 1860. In the same year, 23117 trafficking victims were rescued. Of these, the highest number of persons were trafficked for forced labour (45.5%), followed by prostitution (21.5%). Thus, there is a need to have a comprehensive legislation that can constitute all forms of human trafficking. Consequently, after identifying gaps in the existing legislations, the Anti-Trafficking Bill was introduced in Lok Sabha by the Minister of Women and Child Development, Ms. Maneka Gandhi in July, 2018. Currently, the Bill is in the Parliamentary Standing Committee for revision. Let us take a look at the critical analysis of the bill.
THE ANTI-TRAFFICKING BILL: A CRITICAL APPRAISAL
The Anti-Trafficking Bill, 2018 or Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018 is a well-organized bill which provides for the investigation of trafficking cases, and prevention, rescue and rehabilitation of trafficked victims.
Key highlights of the Anti-Trafficking Bill
The Bill clearly sets out the definition of “trafficking in persons” and specifies all the offences as “cognizable and non-bailable.” Also, the Bill states that its provisions must be read in consonance with other laws and its provisions will only apply in the case of any inconsistency. The main highlights of the Bill are as follows:
The Bill includes trafficking for various purposes – sexual exploitation, slavery, forced removal of organs. In addition, the Bill considers trafficking for certain purposes such as begging, inducing early sexual maturity, forced labour, bearing children as an “aggravated” form of trafficking, which attracts a higher punishment.
In order to punish the traffickers, the Bill provides for the establishment of “investigation authorities or Anti-Trafficking Units and rehabilitation authorities” at “district, state and national levels.” Further, may be, “protection homes and rehabilitation homes” establishes for the long-term care and rehabilitation to the victims of trafficking.
The Bill provides for the “preventive measures” to be taken by “district and state anti-trafficking committees” to protect and prevent vulnerable persons from being trafficked. These measures include – facilitating implementation of livelihood and educational programmes for vulnerable communities, various government programmes and schemes, and developing law and order framework to ensure prevention of trafficking.
The Bill also provides for the setting up “designated courts” in each district for the complete trial of trafficking cases within a year.
While the victims of the offence are provided with “immunity” this immunity extends to only those crimes that are punishable with imprisonment of 10 years or more and not for lesser offences.
The Bill “penalizes an owner or lessor of a premise” as if he is presumed to have knowledge about the trafficking carried out on the premise, along with the traffickers.
The Bill also “punishes a person who distribute or publish material” which may be used for the purpose of trafficking.
The Bill sets out the “higher penalties” for the various offences related to trafficking as compared to the punishments given in the prevailing laws.
Besides all these provisions, the Bill is not perfect and still having certain lacunae which needs to be fulfilled. Let us have a glance at the criticisms of the Bill to understand it more effectively.
Criticisms of the Anti-Trafficking Bill
The Anti-Trafficking Bill, 2018 is a good initiative by the government to condemn the offence of human trafficking. But like every other law, it is also having some gaps. These gaps must be removed to bring this Bill effectively into existence. The criticisms of the Bill are as follows:
Firstly, the Bill gives “no clarity” as to what will happen to the existing laws. This Bill states that it is not a replacement to the existing laws but it adds to the wide range of existing legal framework which deals with various aspects of trafficking in their own way. This will lead to the overlapping in the laws regarding their enforcement and rehabilitation procedures.
Secondly, the “assumption” that owner must be having the prior knowledge regarding the use of his/her premise for illicit purposes is a departure from the standard principle in criminal law where the guilt of the accused has to be proved and not presumed.
Thirdly, the Bill does not specify the criteria of differentiation between “aggravated and non-aggravated” forms of trafficking. It does not tell why other forms of trafficking will not fall in the aggravated category.
Fourthly, what about the “transgender” being vulnerable community. The preamble of the Bill recognizes women and children as vulnerable but it does not even talk about transgender. It is a great lacuna.
Fifthly, the Bill does not mention the word “sex-buyers.” Why the Bill does not set the liability for the sex-buyers? Everyone in the chain of trafficking must be liable.
Sixthly, the “budgets” are not earmarked for the purposes of establishing rehabilitation centers and shelter homes.
Seventhly, the process of “rehabilitation” is very limited. No heed is paid to the fact that there should be individualized exit strategies for the victims to recover from the trauma of trafficking.
Lastly, the “victim immunity and witness protection schemes” are absent. No assurance is given to the victims and witnesses that no actions will be taken against them if they will speak up. Further, the immunity will be given only to those persons who will be trafficked for serious crimes. But the trafficked victims who commit petty offences under coercion will not be able to claim immunity.
These are some of the major lacunae which must be taken into consideration by the law enforcing agencies before the Bill comes into effect.
LANDMARK CASES AND JUDGMENTS
The Supreme Court and various other High Courts stepped in and taking up the cases for proper functioning and monitoring of the institutional machinery, statutory agencies and victims rehabilitation schemes. The Court while exercising its jurisdiction for enforcement of fundamental rights has given various landmark judgments for the strengthening government response in combating trafficking. Some of the various proactive landmark judgments are as follows:
Vishal Jeet v. Union of India
FACTS – A writ petition under Article 32 of the Indian Constitution was filed by way of Public Interest Litigation before the Supreme Court. It seeks issuance of certain directions – (i) to look into issues of Red Light areas and forced prostitution from a law enforcement perspective; (ii) to rescue victims of commercial sexual exploitation and provide them with proper rehabilitation facilities so as to enable them to choose a more dignified way of life; (iii) to look into issues pertaining to dedication of young girls as Devadasi and Jogin.
JUDGMENT – The Supreme Court held that this matter is of great importance and stated that this malady is not only social but also a socio-economic problem and, therefore, the measures to be taken in that regard should be more preventive rather than punitive. Considering all aspects of matter before it, the SC issued the following directions to Central and State Governments – (i) direct concerned law enforcing authorities to take appropriate and speedy action under the existing laws in eradicating child prostitution; (ii) take steps in providing adequate and rehabilitative homes; (iii) set up Advisory Committee consisting of relevant government officials and voluntary organizations to make suggestions for eradicating child prostitution and the Devadasi and Jogin tradition and measures for rehabilitation of victims.
Gaurav Jain v. Union of India
FACTS – The petitioner filed writ petition under Article 32 of Indian Constitution by way of Public Interest Litigation before the Supreme Court of India, based on an article “A Red Light Trap: Society gives no chance to prostitutes’ offspring” published in the magazine ‘India Today’. In the petition, the petitioner has asked for the establishment of separate educational institutions for the children of prostitutes and, seeking a declaration that prostitutes in India have – (i) the right to be free citizens, (ii) the right not to be trapped again, (iii) the right of readjustment by economic empowerment, social justice, self-sustenance, equality of status, dignity of person in truth and reality and social integration.
JUDGMENT – Considering all the facts regarding the matter, the Supreme Court did not accept the plea for separate educational institutions for children of prostitutes as it would not be in the interest of the children and society at large. Further, the Supreme Court quoted the Fundamental Rights of Women and Children from the Constitution of India (namely, Articles 14, 15, 16, 21, 23, 24, 38, 39, 45, and 46) and relevant International Instruments. Also, the SC constituted a Committee directing it to frame a National Plan of Action and to implement it in mission mode. This is to be noted that SC in its whole judgment used the term fallen women for prostitutes.
In Kamaljit v. State of NCT of Delhi 2006, the court in its order stated that sexual exploitation of women and children had not delivered the desired results and more stringent measures were the crying need of the day. Thus, the court emphasized on the point that trafficking is an organized crime and more serious measures are required to condemn it.
The Bombay High Court, in its recent judgment, held that there is no provision under the law which makes prostitution per se a criminal offence. It orders the release of three women sex workers detained at a State corrective institution in Mumbai. It observes that an adult woman had the right to choose her vocation. However, seducing any person for the purpose of prostitution or running a brothel is illegal.
These are only some of the landmark Indian cases which prepared a roadmap for the development of laws regarding human trafficking. There are a plethora of landmark cases relating to human trafficking. The Supreme Court and various other High Courts of India have time-to-time decided many cases and are still trying to develop some rigid measures to stop this brutal practice.
Let us also quote one recent judgment relating to human trafficking by the UK Supreme Court.
MS (Pakistan) v. Secretary of State for the Home Department
FACTS – The Appellant, MS, is a Pakistani national who entered the UK in 2011 at the age of 16 years on a visitor’s visa. During the four preceding years, while still in Pakistan, he had been subjected to forced labour and physical abuse by relatives. One of them, his step-grandmother, brought him to the UK by deceiving him into thinking this was for the purpose of his education. On arrival, he was forced to work for no pay, as arranged by his step-grandmother for her own financial gain. He then moved from job to job for the next 15 months, under the control and compulsion of adults, as both the First-tier Tribunal (FTT) and the Upper Tribunal (UT) later found.
In September 2012, the Appellant came to the attention of the police, who referred him to a local authority Social Services Department. They, in turn, referred him to the National Referral Mechanism (NRM), due to concerns as to his vulnerability and the possibility that he had been trafficked. However, in February 2013, the NRM decided that there was no reason to believe that he was a victim of trafficking. The Appellant sought judicial review of this decision in April 2013.
In September 2012, the Appellant had also claimed asylum, but that application was rejected in August 2013. The Secretary of State, therefore, decided to remove the Appellant from the UK. The Appellant appealed this decision on asylum and human rights grounds to the FTT who dismissed his appeal. The UT granted permission to appeal and re-made the decision in view of errors of law by the FTT, finding in favour of the Appellant. In addressing NRM’s decision, the UT observed it to be contrary to the Article 4 of European Convention on Human Rights.
The Respondent appealed to the Court of Appeal, which allowed the appeal for the AS (Afghanistan) v. Secretary of State for the Home Department, the UT could only go behind the NRM’s decision and re-determine the factual issues as to trafficking if the decision was perverse or irrational or one which was not open to the NRM.
The Appellant was granted leave to appeal to the Supreme Court. He later wished to withdraw from the proceedings, as his immigration problems had now been resolved. A preliminary issue therefore arose as to whether the Equality and Human Rights Commission (EHRC), which had applied to intervene in the proceedings, could take over the appeal.
JUDGMENT – The Supreme Court on unanimously allows the appeal. Lady Hale gives the only judgment, with which Lord Kerr, Lady Black, Lord Lloyd-Jones and Lord Briggs agree. The Supreme Court held that the immigration tribunals can make their own findings of facts and they are not bound by the Home Office. Therefore, the appeal is allowed and the UT’s decision is restored.
This was the instance of the UK Supreme Court in the judgment dated March 18, 2020 regarding human trafficking.
WHAT IS THE WAY FORWARD?
For tackling this major problem, we have to contribute at individual, societal, national and international level to make a great change. Therefore, few suggestions and recommendations to prevent and protect the vulnerable groups and to improve the conditions of trafficked victims are as follows:
First things first, the “implementation of laws” must be strictly done. The enforcement agencies and personnel should be trained to deal with the issue of human trafficking.
The “individualized rehabilitation strategies” for the victims of trafficking must properly planned. The government must ensure a good and healthy environment for the victims in the rehab centers and shelter homes, so that, victims can cope up with the situation and can start their life from a new perspective.
The “awareness campaigns” regarding human trafficking must be initiated at a massive level. The people must be made aware to protect themselves from being trapped in the circles of trafficking.
The people must be provided with “job opportunities” to reduce the trafficking of migrant workers. If they will be given better economic opportunities in their areas, then the chances are high that we can combat trafficking of migrant persons.
“Good governance and transparency” must be a prior commitment to prevent human trafficking.
Apart from these suggestions, the major requirement is to cut down the source or the roots of human trafficking at the ground level, i.e., rural areas. The people must be given reasonable social, economic and educational opportunities to prevent themselves from the clutches of traffickers. The government should take immediate and strict actions regarding this huge problem. This should be the need of the hour.
CONCLUSION
After having a very lengthy discussion on the issue that should be the priority to be tackled, we have come to an end of the same. As we have seen what human trafficking is and who are the vulnerable groups that are most likely to fall prey to the traffickers, it varies from country to country. People in precarious situations are looking out for their needs and in the desperation of the same; they end up falling in the hands of traffickers. We see this exploitation happening in various different forms – forced labour, slavery, servitude, prostitution, engaging children in wars, and many more. This leads to the severe physical, mental and emotional health conditions of the victims of human trafficking. It is evident from the discussion that we have a robust legal framework both at national and international levels. But, because of negligent, corruptive and non-serious nature of our law enforcement agencies, human trafficking has become a hidden crime. Due to the lack of victim-centric justice and witness incentivizing schemes, the victims are afraid of coming out. The safety of the public and victims is a paramount need. Not only the government and law implementing bodies, but also the society at large must have to take drastic steps to condemn this global issue. Despite of the fact that “Right to Life and Personal Liberty” are fundamental human rights, the status of “human” has fallen no more to that of a “commodity.” These human rights are inalienable and natural rights that call for a duty to be preserved and not infringed.
STOLEN PEOPLE, STOLEN DREAMS! END THE MISERY, STOP TRAFFICKING!