The government of India officially ratified the United Nations Convention against Transnational Organised Crime (UNTOC)[1] and its Protocols, including the UN Trafficking Protocol, on May 5, 2011. The process of ratification indicated the State’s consent to be bound by the terms and provisions of the UNTOC and its Protocols. However, in India ratified treaties do not automatically have the force of law in domestic courts.

The India Constitution binds the Indian government to adhere to its treaty and obligations.[2] In Vishaka v. State of Rajasthan[3], the Honourable Supreme Court of India (hereinafter, ‘the Apex Court’) established that the provisions of intentional treaties might be read into existing Indian law in order to expand its protection.[4] Thus, the anti-trafficking provisions of the Indian Constitution and other laws should be interpreted in light of the UN Trafficking Protocol and other international treaties to which India is a party.

Under the Indian Constitution the issue of trafficking has been dealt with specifically. Article 23[5], Article 39(e)[6] and Article 39(f)[7] deal with trafficking and indicate the special protection to be provided to vulnerable groups in the society. Both under Chapter III i.e. of Fundamental Rights (FRs) and Chapter IV i.e. of Directive Principles of State Policy (DPSP), the issue of trafficking has been closely acknowledged and dealt with.

While fundamental rights are justifiable and can be directly enforced in a court of law, the same is not true for DPSP. However, they play a major role in shaping State policies and be the basis for a legislation. As per Article 23 which forms a part of Chapter III, trafficking in human beings is prohibited as are all forms of forced labour. As per Article 39(e) and (f), health and strength of the workers should not be abused.

The Immoral Traffic Prevention Act, 1956

It is the only legislation that specifically deals with trafficking. Some of the major elements of trafficking are covered by it. These include procuring[8], inducing or taking a person for prostitution, detaining a person in premises where prostitution is being carried on[9] and soliciting[10].

On rescue and rehabilitation, the Act provides for rescue on the directions of a Magistrate.[11] To protect rescued women from harassment, two women police officers must be present during the search procedure and also the interrogation must be done by a woman officer.[12] There is also provision for placing the woman or child in intermediate custody removed as per the provisions under section 15 or 16 in a safe place and to away from those who might influence her adversely and in a harmful manner.[13]

Though Indian laws have various provisions punishing trafficking in person, but all of them lack a comprehensive definition for the same.

Judicial Pronouncements
Though there have been umpteen numbers of cases decided by the Honourable courts in India, studies show that convictions have been abysmal.[14]

In Bodhisattwa Gautam v. Subhra Chakraborty[15], wherein a person had promised to marry a woman and even went through a wedding ceremony which later turned out to be false, compensation was ordered to be paid by the perpetrator of the crime to the victim. In another case of PUCL v. Union of India[16] compensation was ordered to be paid where children were trafficked and bonded for labour.

Vishal Jeet v. Union of India and others[17] was a landmark case where the Honourable Supreme Court gave direction for protection and rehabilitation of those who had been dedicated as devadasis by their families or community and were currently in the prostitution business.

Protection of children from trafficking in person has been in debate for quite a while now and there are innumerable cases dealing with the issue. In Gaurav Jain v. Union of India[18], a PIL filed to grant protection to children of sex workers and to keep them away from such a vulnerable and harmful environment, the Court agreed otherwise. In Lakshmikant Pandey v. Union of India[19] which examined the vulnerability of children being trafficked in adoption rackets due to lack of an effective mechanism to protect them, the court created an appropriate mechanism to fill the gap, especially in context of inter-country adoptions.

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

The Bill has 59 sections divided into 15 chapters. The main features of the Bill are:

1. The Bill deals with all kinds of trafficking and also with the rehabilitation, protection and rescue of the trafficked person.
    
2. It also seeks to establish the rehabilitation and investigation authorities at the District, State and National level.
    
3. An Anti-trafficking unit for rescuing victims and investigating the case while a Rehabilitation Committee for rehabilitation will be setup as per the provisions of the Bill.
4. Trafficking has also been classified into general and aggravated forms under the Bill. The aggravated form is trafficking for the purpose of forced labour, bearing of children, begging, or for inducing early sexual maturity.
    
5. The punishment under the law has been enhanced and made more stringent in comparison to the present laws.
    
6. It also takes care of the confidentiality of the victim, complainant and of the witness by not disclosing their identity.
    
7. All proceedings need to be time-bound and must be completed within an year from date of taking cognizance.
    
8. For the first time, a rehabilitation fund for the victims of trafficking shall be created.
    
9. The Bill also addresses the issue of trans-border trafficking.

An analysis
The Bill is incomplete in the sense that it does not cover all ambits of trafficking. The Criminal Law (Amendment) Act, 2013 introduced two new sections under The Indian penal code (hereinafter, ‘the IPC’) dealing with trafficking i.e. Section 370[20] and 370A[21]. Section 370 deals with all kinds of trafficking and this can be gathered from its explanation clause. The penal sanction imposed is a minimum sentence of seven years which may extend to ten years.

The Bill doesn’t redefine the word ‘trafficking’ but only include one separate category of it, i.e., ‘aggravated form’ of trafficking which includes trafficking for the purpose of forced labour, marriage, childbearing and begging. The penal sanction is imposed is minimum imprisonment for ten years which may extend to life imprisonment. To an utter surprise, trafficking for the purpose of sexual exploitation doesn’t come under definition of aggravated form of trafficking. Trafficking for sexual exploitation is counted among the top three prime reasons for human trafficking in India. More than 30 per cent people rescued from such groups who engage in human trafficking were related to sexual exploitation. Despite all of it, trafficking for sexual exploitation doesn’t find mention in the Bill which is astonishing.

There is also no mention of victims of trafficking during disasters. The National Crime Records Bureau (NCRB) in its 2016 data stated that the police registered 10,357 cases of trafficking for forced labour, 349 cases of trafficking for forced marriage and 71 cases of trafficking for begging. The Bill doesn’t address the same.

As for rehabilitation, the Bill like the present laws adopted the confinement method of rehabilitation, which has anyway proved to be inadequate. The Bill also doesn’t change the current mechanism of checks and balances on the investigating authorities and doesn’t hold them accountable for improper training or any other flaw.

The burden on the accused to prove his innocence without any legitimate and evidentiary basis is against the principle of innocent until proven guilty and this is another flaw of the proposed legislation.

The Bill also intrudes into the legislative area of other penal laws such as Section 383[22] IPC and many other offences. This proves that the law has been drafted without applying any legal mind.

Conclusion
It seems to be a never ending cycle that the legislature in this country will keep passing laws without applying their legal mind and the burden will then shift on the judiciary to keep interpreting them and thereby increase the work load of the already burdened courts in India.

The new trafficking bill of 2018 is a poorly drafted law and seems to have been made in haste without any deliberation being made upon the consequences it will lead to and the conflict of laws that will occur.

End-Notes:

1. Adopted by UN GA Resolution No. 55/25 on 15th November, 2000.
2. The Indian Constitution, Art. 51(c)
   51. The State shall endeavour to- (c) foster respect for international law and treaty obligations in the dealings of organized peoples with one another.
3. (1997) 6 SCC 241.
4. Ibid.
5. 23. Prohibition of traffic in human beings and forced labour.- (1) Traffic in human beings and begar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law. (2) Nothing in this article shall prevent the State from imposing compulsory service for public purposes, 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.
6. 39. Certain principles of policy to be followed by the State- The State shall, in particular, it policy towards securing- (e) that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength
7. 39. Certain principles of policy to be followed by the State- The State shall, in particular, it policy towards securing- (f) that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.
8. The Immoral Traffic (Prevention) Act, 1956 (Act 104 of 1956), s. 5.
9. The Immoral Traffic (Prevention) Act, 1956 (Act 104 of 1956), s. 6(1).
10. The Immoral Traffic (Prevention) Act, 1956 (Act 104 of 1956), s. 8.
11. The Immoral Traffic (Prevention) Act, 1956 (Act 104 of 1956), s. 16.
12. The Immoral Traffic (Prevention) Act, 1956 (Act 104 of 1956), s. 15(6A).
13. The Immoral Traffic (Prevention) Act, 1956 (Act 104 of 1956), s. 17.
14. Judicial Handbook on Combating Trafficking of Women and Children for Commercial Sexual Exploitation, UNICEF (2004).
15. (1996) 1 SCC 490.
16. 1998 (8) SCC 485.
17. (1990) 3 SCC 318.
18. AIR 1997 SC 3021.
19. AIR 1984 SC 469.
20. 370. Trafficking of person.- (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 practising 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.
    Explanation I—The expression "exploitation" shall include any act of physical exploitation or any form of sexual exploitation, slavery or practices similar to slavery, servitude, or the forced removal of organs.
    Explanation II—The consent of the victim is immaterial in determination of the offence of trafficking.
    (2) Whoever commits the offence of trafficking shall be punished with rigorous imprisonment for a term which shall not be less than seven years, but which may extend to ten years, and shall also be liable to fine.
    (3) Where the offence involves the trafficking of more than one person, it shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life, and shall also be liable to fine.
    (4) Where the offence involves the trafficking of a minor, it shall be punishable with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, and shall also be liable to fine.
    (5) Where the offence involves the trafficking of more than one minor, it shall be punishable with rigorous imprisonment for a term which shall not be less than fourteen years, but which may extend to imprisonment for life, and shall also be liable to fine.
    (6) If a person is convicted of the offence of trafficking of minor on more than one occasion, then such person shall be punished with imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine.
    (7) When a public servant or a police officer is involved in the trafficking of any person then, such public servant or police officer shall be punished with imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine.
21. 370A. Exploitation of a trafficked person.- (1) Whoever, knowingly or having reason to believe that a minor has been trafficked, engages such minor for sexual exploitation in any manner, shall be punished with rigorous imprisonment for a term which shall not be less than five years, but which may extend to seven years, and shall also be liable to fine.
    (2) Whoever, knowingly by or having reason to believe that a person has been trafficked, engages such person for sexual exploitation in any manner, shall be punished With rigorous imprisonment for a term which shall not be less than three years, but which may extend to five years, and shall also be liable to fine.'.
22. 383. Extortion- Whoever intentionally puts any person in fear of any injury to that person, or to any other, and thereby dishonestly induces the person so put in fear to deliver to any person any property or valuable security, or anything signed or sealed which may be converted into a valuable security, commits "extortion".