Adv. Surya Menon K
The forward pace of globalization is greatly influencing the phenomenon of organized crime. Transnational organized crimes syndicates take advantage of market liberalization, relaxed border controls and internet facilities and carry out their nefarious activities in multiple countries. The United Nations Convention against Transnational Organized Crime, 2000 (UNTOC) defines the phenomenon in Article 3 (2) as:
- The offences committed in more than one state;
- It is committed in one State but a substantial part of its preparation, planning, direction or control takes place in another state;
- It is committed in one state but involves an organised criminal group that engages in criminal activities in more than one state; or
- It is committed in one state but has substantial effects in another state.
The activities of organised criminal groups are not only interrelated, but they are also connected to political developments such as weak states, economic conditions, the open or close nature of markets and sanctions; socio-cultural developments such as the significance of clans, families or other groups1.
Human Trafficking as a Transnational Organised Crime
Human trafficking and exploitation of human beings and their vulnerabilities has evolved as one highly lucrative facet of transnational organised crime.
Owing to the multitude of right violations, their severity and scale, human trafficking is often considered as a modern form of slavery or slave trade and the very antithesis of the Universal Declaration of Human Rights, 1948 (UDHR). Trafficking follows in the tracks of poverty and inequality, the lack of educational opportunity and access to health-care, gender discrimination including gender-based violence, or racial inequality. Accordingly, trafficking occurs worldwide, although most victims are trafficked from poor countries to richer regions. Mostly, several related offences accompany the act of trafficking such as – breaches of immigration laws, document forgery, corruption, tax evasion. These are coupled with the offences directed at the individual such as – coercion or threats, extortion, aggravated sexual assault or even murder2.
According to Article 3(A) of Trafficking Protocol, 2000:
“Trafficking in persons shall mean the recruitment, transportation, 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 abuse, of power or of a position of vulnerability or giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation”.
The human trafficking possesses a threat to the legal framework, integrity and the security of nations. It has grave consequences for the safety, welfare and human rights of its victims. Organised crimes syndicates mobilize people to in turn smuggle more people for working as migrant workers, who are then exploited as forced labourers and slaves and women victims are forced into prostitution. They are also used for trafficking drugs and arms, thereby weakening the economic and legal structure of countries.
Forms of Human Trafficking
There are various forms of trafficking depending upon the purpose for which the people are trafficked3.
- Trafficking for forced and bonded labour
- Trafficking for forced criminal activities
- Trafficking for sexual exploitation
- Trafficking for removal of organs
- Trafficking of children by adoption for slavery and sexual abuse
The victims are often trafficked by trickery and deception, mainly through false advertisements offering high-paying employment, educational opportunities, matchmaking services, mail order bride agencies, usually involving a relative, a boyfriend or a friend of a friend. Sometimes victims are abducted from orphanages. Once they are recruited into sexual slavery trade, their identification documents are confiscated and they are broken in. Then they are forced to work in red light areas, massage parlours, brothels and strip clubs and are coerced to blend in with those engaged in prostitution by choice. Many victims are auctioned off on the internet through sex websites, escort services and virtual brothels. Victims that are too ill or considered too old are simply discarded4.
Children are trapped in sexual servitude as they are easy prey and less able to escape exploitation. Children are traded for adoption purposes. Older children are bought or lured by offering shelters, food or toys and infants are often kidnapped, stolen or taken away with the help of hospital or other institutional staff. Women are trafficked to sell off their children. The so-called brides are ordered from other countries often from Asia to Europe, with the hidden intention of getting them pregnant and obtaining their children for sale5. Anecdotal evidence from social services in some of these countries also shows that women with their children are ordered for marriage and the new husband adopts children with the real purpose being to sexually them6.
Trading in children for adoption – whether internationally or in the domestic market is more labour intensive and more complicated but it also brings considerably higher profits. Child trade usually takes place in undeveloped or developing countries. The main reasons for the same are various problems like to economic necessity, gender discrimination, lack of proper education facilities, social exclusion of the community, a weak system of protection, or an inefficient legal system. Wars, natural disasters, globalization are considered to be other external factors in addition to poverty that is prevalent in such nations7.
International Legal Framework for Combating Human Trafficking
Universal Declaration of Human Rights adopted by the United Nations in 1948, acknowledges that the recognition of inherent dignity and of equal and inalienable rights of all the members of the human family is the foundation of justice, equality, freedom and peace in the world.
Palermo Convention or UNTOC, 2000 is designed to be the premier global crime suppression convention in the fight against organised crime. The three Protocols – The Human Trafficking Protocol, The Migrants Smuggling Protocol and The Firearms Protocol deal with specific crimes stipulated as sufficiently serious to justify the application of the UNTOC’s regime for international cooperation and many of the provisions of the UNTOC are specifically designed meant for the implementation of the Protocol. This is the first global legally binding instrument with an agreed definition on ‘trafficking in persons’.
The UN Protocol, to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, 2000 is the International legal instrument to address the crime of human trafficking, particularly in women and children. This instrument is considered to be a law enforcement Protocol addressing aspects of Prevention, Prosecution and Protection. The element of ‘consent’ is irrelevant under this Protocol as it reflects the common understanding that individuals cannot give consent to be tortured , abused or exploited8.
Constitutional and other provisions in India
According to The National Crime Records Bureau (NCRB), every 8 minutes, a child goes missing in our country. According to the Ministry of Women and Child Development, 19,223 women and children were trafficked in 20199. India is considered to be the greatest hub of this crime in Asia. Last year India has been coined as, ‘The world’s most dangerous country for women’ ahead of Afghanistan, Syria and Saudi Arabia, according to a poll by the Thomson Reuters Foundation, which surveyed 548 experts on six different indices including health care, discrimination, cultural traditions, sexual & non-sexual violence and human trafficking10. But the National Commission for Women and Children rejected it outright, pointing out that rape, harassment, human trafficking and other forms of violence against women appeared to have risen in India because more cases are being reported driven by public outrage11.
India being a signatory to many International Conventions like Convention on the Elimination of All Forms of Discrimination Against Women, 1979 (CEDAW), Convention on the Rights of the Child, 1989 (CRC), Trafficking Protocol, Beijing Rules and Palmero Convention, a duty is cast upon the government to adopt the provisions of these Conventions into Domestic Law.
Looking into the provisions of our Constitution, we can see that human trafficking is punished and protection from such exploitation is guaranteed under Part Three as Fundamental Right. Article 23 of the Indian Constitution guarantees protection against exploitation, prohibits trafficking in humans and all forms of forced labour and makes this punishable under law. Article 24 prohibits child labour and protects children below 14 years working in factories, mines or other hazardous employment.
Under Criminal Law (Amendment) Act, 2013, Sections 370 & 370A were introduced in Indian Penal Code, 1860 (Act 45 of 1860). Section 370 defines trafficking of persons, which largely replicates UN protocol’s definition, Section 370A explains the exploitation of trafficked persons. The punishment varies according to the nature of the offence. It varies from seven years to life imprisonment which may mean the person’s remaining years of natural life.
The Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill 201812, which was passed by Lok Sabha in 2018, is not yet passed in Rajya Sabha till date. There are provisions for investigation of all types of trafficking, rescue, protection and rehabilitation of trafficked victims in the prescribed Bill. The Bill also classifies certain purposes of trafficking as aggravated forms of trafficking, which attracts a higher penalty. The penalties set for several offences are higher than the existing punishments in the laws prevailing.
We can conclude by reiterating the fact that human trafficking is a form of modern-day slavery. Here the victims are often considered as commodities. It leads to severe violation of human rights and deprivation of human dignity. The UN identified the ‘Three-P-Strategy’ – ‘Prevention, Protection and Prosecution’ as a governmental duty to take preventive measures, protection steps and prosecution to curb the crime. The ‘Three-R-strategy’ – ‘Rescue, Rehabilitation and Reintegration’ as identified by the UN is victim-oriented and this needs the concerted effort of local and international organizations for effective implementation13.
1. Joshua Nathan Aston, Trafficking of Women & Children (1st ed. Oxford University Press , 2016).
2. UNDOC, Assistance For The Implementation Of The ECOWAS Plan Of Action Against Trafficking In Persons, UNITED NATIONS (Sep. 20 2020 11.00 AM), https://www.unodc.org/documents/human-trafficking/ecowas_training_manual_2006.pdf ↩
3. Interpol.int, Types Of Human Trafficking. Interpol (Sep. 20 2020 11.00 AM), https://www.interpol.int/Crimes/Human-trafficking/Types-of-human-trafficking/ ↩
4. Supra note 2, P.1 ↩
5. Supra note 2. ↩
6. Supra note 2 ↩
7. Supra note 2. ↩
8. Hauck, P. and Peterke, S. ed.. International Law And Transnational Organised Crime (1st ed. Oxford University Press, 2016). ↩
9. Lawnn.com, Human Trafficking In India: Legal Protection And Laws, LAWNN (Sep. 20 2020 11.00 AM). https://www.lawnn.com/human-trafficking-india/. ↩
10. Foundation, T., The World’S Five Most Dangerous Countries For Women 2018, T.R Foundation (Sep. 20 2020 11.30 AM). http://poll2018.trust.org. ↩
11. Human Trafficking in India, Dianova (Sep. 20 2020 11.40 AM), https://www.dianova.org/opinion/human-trafficking-in-india/. ↩
12. MWCD,. The Trafficking Of Persons (Prevention, Protection And Rehabilitation) Bill, 2018, PRSIndia (Sep. 20 2020 11.55AM), https://www.prsindia.org/billtrack/trafficking-persons-prevention-protection-and-rehabilitation-bill-2018. ↩
13. Supra note 9, P.4. ↩