**5. Legal framework to curb trafficking in persons in India**

While India ratified the Protocol [5] in 2011 and has anti-trafficking legislation, enforcement of this legislation is inadequate. This is not a situation limited to India. Among the 132 countries that have ratified the Convention, 15% did not record any conviction and 40% had less than 10 convictions for the offense of trafficking in persons between 2010 and 2012 [15]. The report of 2016 also shows a similar trend [23]. The number of convictions in India for this crime during the past 5 years is not also that great (refer to **Table 2** for conviction rate). This calls for an evaluation of the existing legal framework to address the trafficking of persons in India.

The supreme legislation governing citizens' rights in India is the Constitution of India, which has recognized the need for preventing trafficking in persons under Article 23, Article 39(e), and Article 39(f). Article 23 forms part of the scheme against exploitation under the Indian Constitution. Although initially conceived as a provision to abolish slavery, after multiple deliberations, Article 23 was drafted to include the prevention of beggars, traffic in human beings and bonded/forced labour. Article 23 (1) reads: "Traffic in human beings and the 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" [24].

The judicial intervention has resulted in expanding the provision to be applicable for the prevention of unpaid and underpaid work, forced labour, bonded labour, and compulsory services, in addition to trafficking in persons and bonded labour contacts [25–29]. Under Article 39(e), the state is obliged to have policies aimed at social welfare, including policies for preventing the abuse of any citizen who is 'forced' by their circumstances, for example, economic necessities, to enter any occupation that are unsuitable. The data presented under 'factors contributing to trafficking in persons' shows economic factors as a major determinant (refer to page 6, para 3). Article 39 (f) ensures the equal opportunity rights of individuals to develop in a healthy manner under conditions of freedom and dignity with a guarantee to protect children and youth from exploitation.

Until the amendment to Indian Penal Code (IPC) in 2013 [30], the only antitrafficking legislation in India was the Immoral Trafficking Prevention Act (ITPA), 1956 [31], in pursuance to the obligation under Article 23 of the Indian Constitution. This covers a few elements of trafficking, including procurement, inducing or taking a person for prostitution (Sec 5), detaining a person (Sec 6), and seducing or soliciting for the purpose of prostitution (Sec 8). Under this legislation, the authority for issuing directives for the rescue is a Magistrate (Sec 11), the procedure for search and interrogation (Sec 12), etc. In addition, provisions in the IPC, such as 363A, 366A, 366B, and 370 (before 2013 amendment) [32], also comprised the framework for combating trafficking in persons (**Table 5**).

The ITPA, initially drafted in 1956, is heavily impacted by the broader understanding that the crime of trafficking in persons is linked with the procuring women and girls for the purpose of prostitution. Although named as the central legislation to combat trafficking in persons in India, its scope is limited to prostitution or commercial sexual exploitation and penalizes all those who facilitate and abet this crime, including clients and those who live off the earnings of prostitution [33]. Analyzing this legislative piece from the lens of trafficking in persons, it is widely criticized for its conceptual loopholes and definitional inconsistencies [33]. Even though the word 'traffic' exists in the title of the legislation, it does not define the term 'traffic' or 'trafficking,' nor does it define 'commercial sexual exploitation.' This lack of definition creates confusions on the nature of the offense under this legislation; namely, is engaging in prostitution an offense or trafficking for the purpose of prostitution an offense. This ambiguity has also resulted in confusions while implementing the legislation, say law enforcement officers invoking ITPA instead of the provisions


#### **Table 5.** *Offenses and punishment under Sec 370 IPC.*

#### *Reincarnation of Slavery: Realities and Experiences of Indian Efforts to Combat Human… DOI: http://dx.doi.org/10.5772/intechopen.110739*

under IPC. Another issue with this legislation is that it assumes that prostitution takes place in brothels. This completely undermines the fact that sexual exploitation can also occur in private premises, like hotels, residences, clubs, mobile locations, etc.

Treating victims of trafficking as offenders and hosting them in corrective homes also raises concerns. It is to be noted that the same person cannot be a victim and an offender at the same time. Considering them as both victims and offenders at the same time exhibit the contradiction in the attitude towards prostitution and prostitutes in our country. While sex work is not an offense in India, all those who sell their bodies for a living are considered as offenders under the ITPA. Further, the use of the term 'corrective home' is also considered ambiguous as victims of trafficking who are forced into brothels need not be corrected. Another flaw of the legislation is that it does not bring it to its ambit socio-religious practices like the devadasi system. Further rights of victims, including psycho-social rehabilitation and health and educational support are also absent in this legislation. Another drawback of this legislation is the lack of witness support mechanisms.

The penal policies under this legislation also require scrutiny. For example, the punishment awarded to those who visit the brothel could be revisited as not all visits to the brothel involve trafficked persons. The Standing Committee report (2006) describes incidences of widespread misuse of Sec 8, which carries a punishment for solicitation, resulting in the harassment and punishment of women involved in sex work/victims rather than the perpetrators [34].

The Indian Penal Code also provides a framework to define trafficking in persons and penalize the same. In furtherance to the ratification of the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons [5], the Criminal Law Amendment (2013) subbed the existing section of 370 with Sec 370 and Sec 370A [30]. This came as a response to the proposal of The Report of the Committee on Amendments to Criminal Law who proposed a definition for trafficking, which again did not distinguish trafficking from voluntary sex work [35]. This faulty assumption defined 'exploitation' to include both voluntary and non-voluntary prostitution [36]. The responses from various civil-society organizations resulted in defining trafficking without conflating it with prostitution. With the amendment, Sec 370 is now expanded to include slavery, trafficking in persons for the purposes of forced/bonded labour, sexual exploitation, organ transplantation and even child marriages. Sec 370 currently reads as follows:

"whoever, for the purpose of exploitation, (a) recruits, (b) transports, (c) harbours, (d) transfers, or (e) receives, a person or persons, by

#### i.using threats, or

ii.using force, or any other form of coercion, or

#### iii.by abduction, or

iv.by practicing fraud, or deception, or by abuse of power, or

v.by inducement, including the giving or receiving of payments or benefits,"

in order to achieve the consent of any person having control over the person recruited, transported, harbored, transferred or received, commits the offense of trafficking. The explanation for this includes expressions of slavery, practices


#### **Table 6.**

*Punishment under Sec 370A IPC.*

similar to slavery, servitude, forced labour or services, forced removal of organs, etc. constitute the crime of trafficking [32]. The punishment under this section could be summarized as follows:

"Sec 370A provides punishment for exploitation of trafficked person, a snapshot of which is provided in **Table 6**."

Although the definition of trafficking provided under Sec 370 is very much like that provided in the Trafficking Protocol, it omits two key elements: 'an abuse of a position of vulnerability' and 'forced labour'. This omission raises challenges in terms of failing to cover economic or social vulnerabilities. Although 'forced labour and services' existed in the Ordinance [36], it was omitted in the Act. This omission has further resulted in limiting the scope of the legislation to prostitution while overlooking those performed in households, construction sites, mills, kilns, factories, farms, etc. [37]. A study conducted between 2013 and 2018, assessing the cases registered under Sec 370 shows that many of the cases are related to sex work, with a minority of cases which dealt with exploitation of workers and migrants. This study also observes that the Appellate Court judges have been concerned with the procedural aspect under Sec 370 rather than expanding the substantial aspect of this legislation [37]. They also observed that Sec 370 is also used as an additional charge in other criminal law cases, for, e.g., cases where a wife left her husband to live with another man along with her child or in cases of rape and sexual abuse, for securing confinement, making the scope and application of this provision more dynamic. Considering the substantial elaboration, a High Court ruled that Sec 370A could be imposed on a customer who has approached a sex worker [38]. Further, another High Court clarified that imposition of Sec 370 A in such cases is dependent on the facts and circumstances [39]. Such elaborations of Sec 370 A could target all sex workers, whether trafficked or not, creating ambiguity similar to ITPA. The larger application of Sec 370 along with ITPA in 2017–2018 displays this danger [37].

Other practical issues with Sec 370 are, it requires proof that the accused has recruited, transported, harbored or transferred, either single-handedly or in group, any victim for engaging in the crime of trafficking. When it becomes difficult to prove the modes, as many-a-time, the victim(s) may not be aware that they are being trafficked or who the trafficker is, it raises challenges in proving the same. The Global Report on Trafficking in Persons (2020) demonstrates that it could be a person that the victim trusts (including partners/parents) who would have sold the person to traffickers [7]. Another essential element is proving 'exploitation'. What constitutes exploitation is another ambiguity with the legislation.

The lack of a concrete framework towards protection and rehabilitation of victims of trafficking has led the Ministry of Woman and Child Development (MWCD) to propose the Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill 2018 [40]. The Bill does not define 'trafficking' but defines 'aggravated form' of

### *Reincarnation of Slavery: Realities and Experiences of Indian Efforts to Combat Human… DOI: http://dx.doi.org/10.5772/intechopen.110739*

trafficking, which may include trafficking for the purpose of forced labour, marriage, childbearing and begging. However, trafficking for sexual exploitation does not fall under the definition of 'aggravated form' and is kept as a separate category. Although the Bill claims to prevent, protect and rehabilitate victims of trafficking, it is heavily criticized for replicating the essence of the earlier legislation, focusing on sex trafficking and prostitution. One of the merits of this legislative piece is that it has defined the term 'victim', which is found to be ignored in other frameworks, either in India or in the Protocol [5]. Although there are provisions for social integration and reparation, the Bill is criticized for leading to the extradition of victims, which may add to their vulnerability and re-victimization. The institutional model prescribed for rehabilitation of victims, similar to the ITPA has already been proven to be ineffective, facilitating sexual abuse and suicide [41–44]. The schemes for compensation and witness protection included in this Bill can be seen as a welcome step. Further the terms like 'brothel,' 'public place,' etc., are omitted from the definitions making it a law to supplement the ITPA, which also suggest the conflict between ITPA and the Bill, where the legislative intent varies. The Bill assumes all sex workers as victims of trafficking and does not differentiate consensual and voluntary sex work from that is forced.

Several versions of the bill have been presented post-2016; however, its basic framework has not changed, making it faulty legislation. Moreover, when the political will to combat trafficking is also in question when multiple drafts are still presented, and the Bill remains on hold even after 5 years.

## **6. Conclusion**

The trafficking of persons has been a challenge to the international community as it results in gross human right violations. How individuals are being exploited, losing their fundamental rights bring comparisons between the practice of human trafficking and slavery, by which this crime is termed as modern-day slavery. This association of trafficking in persons to prostitution for a century resulted in a very narrow interpretation of the crime, creating practical issues with respect to the implementation of such instruments. According to data presented for the last 5 years, globally there has been a steady decline in the number of persons who have been trafficked. This decline could be attributed to the increased debates on human trafficking across the globe and the human-trafficking efforts. There was an assumption that the increased levels of vulnerability followed by the pandemic would result in increasing levels of trafficking, but the reports suggest the contrary. This could be due to the difficulty in capturing data during the pandemic, as reports suggest the challenges in anti-humantrafficking efforts during the period. The Indian statistics also show a decline in the number of trafficking persons during the past 5 years. Although the numbers were much higher in 2016, they fell to almost one-fourth during the next year, remaining almost at the same levels afterwards. There are different explanations for these reduced numbers, as either a credit to the functioning of anti-human-trafficking cells in the country or, on the contrary, arguments that the traffickers have changed their modus operandi, which makes it difficult to trace them. Furthermore, the existing laws tend to attribute human trafficking to sex trafficking, resulting in challenges with identifying the victims and offering victim protection. Hence, it can be said that the efforts to combat trafficking have not materialized to a great extent, although the statistics show a decrease in numbers.
