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Introduction

Brick industry is one of the informal/unorganised industries in India. This industry is booming with the expansion of real estate business. It is a labour concentrated industry. In India there are more or about 1,50,000 brick kilns with approximately 23 million workers directly or indirectly dependent on this industry[1]. In National Capital Region (NCR), brick making on simply business-related basis started during the commencement of the nineteenth century.

Due to acute landlessness and high unemployment, the youth especially in rural India are bound to take money in advance from kiln owner for their daily sustenance by selling their labour. This arrangement confines their freedom to look for other locations to work in. It also hinders their negotiating power concerning minimum wages and services, forcing them to work in terrible conditions. A vicious debt trap sucks in these toothless workers; creating a situation known as neo-bondage. According to the International Labour Organisation (ILO) almost 21 million people are sufferers of forced labour – 11.4 million women and girls and 9.5 million men and boys. And the brick production industry, centring on India, is an epicentre of abuse[2]. In contrast to older forms of bondage, which were rooted into a broad set of rights and obligations and were repeatedly intergenerational, neo-bondage is time restricted and added economic in nature. Neo-bondage is estimated to include around 10 per cent of the working population in the casual sector in India’s urban and rural financial system, namely, around 40 million. “Neo-bondage” exists in various industries in India’s rural and urban areas.  In Uttar Pradesh, this system was known by different names such as begar, bajgee, bandhwa mazdoor, sevak, bandhak, harwah, etc., and was prevalent in agriculture, brick kilns, stone quarries, matchbox, fireworks and factories of bidi, brassware, glass bangle and carpet manufacturing industries. It is prevalent in the most important seasonal industries where heavy physical work within an exacting time-frame is required. Since the majority of the brick kiln workers are uneducated or have low levels of education, it was experiential that many of the labourers had little to no knowledge of labour laws in India.[3]

NCR and brick kilns

National Capital Region (area 54,984 km2) covers 23 districts of Uttar Pradesh, Haryana, and Rajasthan. At present about 4018 functional brick kilns are operating in NCR (according to the Report published by the Centre for Science and Environment).[4]

States in Delhi NCR Number of districts Total number of brick kilns
Uttar Pradesh 8 2291
Haryana 13 1610
Rajasthan 2 252

 Number of Brick Kilns in Delhi, NCR

There are 8 districts of Uttar Pradesh covering under NCR, having an area of 25,327 km2 in National Capital Region. There are around 2291 kilns in the NCR districts of Uttar Pradesh. As per the data submitted by the Brick Kiln Association there are 13 districts covered under NCR from Haryana State and there are around 1610 kilns. Rajasthan shares only two districts with the NCR — Bharatpur and Alwar[5] with Alwar District having 142 brick kilns and Bharatpur having 110 brick kilns. Four million labourers are engaged directly or indirectly in this sector. The brick kiln industries in Delhi NCR are typically unincorporated concerns under owner management, mostly proprietary or firm establishments.

Recruitment and advance payment system fuels enslavement

The way the workers are recruited and paid in the kiln is critical to understanding the system of power relations which keep the workers poor and vulnerable to debt bondage.[6] Work in brick kilns demands physical labour that usually exceeds 10 and often more than 12 hours and normally leads to 20-40 workers at a time. These workers work as per their expertise and are paid accordingly. Moulder who prepares the ditch and moulds the brick is waged per thousand bricks. He uses the workforce of women and children of the family to mould the mud and to take the moulded brick to dry in the sunlight. The loader loads the brick into the kiln, which includes transporting the dried green brick to the kiln with the help of carts and animals, is paid a consolidated salary. The stacker arranges the green bricks into the kiln and “rapaswala” covers it with earthen preparation he is paid as per thousand bricks. The fireman fires the kiln and watches over it all through the operation, is paid monthly on consolidation basis. The “nikasi” or unloader removes the baked brick from the kiln and stacks them accordingly to the quality of the bricks, the women engaged in this activity and also clean the kiln after the bricks are removed are paid per thousand bricks.[7]  The workforce is migrant and seasonal. Production is stopped in the rainy season or by NGT during winter to curb the problem of pollution in NCR, the workers are not paid throughout the year. Payment is by piece rate and issued at the end of the season. Production and processing units do not directly recruit workers and their families, but rather through local, native intermediaries who are often from the same community. These agents of brick kiln owners known as jamadar come to villages to recruit workers with an advance or peshgi. However, by contracting out this debt, they are unknowingly forced into bondage[8]. Normally jamadars are either from the same village as the labourers, or from a neighbouring village. They follow the instructions of brick kiln owners, asserting the amount of labour required and paying part of the advances. Wage advances attract workers; as money is lent mostly for societal customs like weddings, celebrating festivals, for funerals and other rituals, follow by medical emergencies like surgeries for elders, pregnancies or children falling ill. Sometimes money is also borrowed for building a house or purchasing livestock. The money is mainly dispersed during the lost season which comes immediately at the end of working season. During the work season, brick producers are just given weekly allowance which cover their basic needs. Mostly workforce accounts are settled at the end of the season, with the season’s production deciding the total remuneration, and a deduction of the sum of advance and weekly allowances. Some go away with a little amount, others have settled their accounts, while still others, more frequent, remain in debt at the end of the season and will have to come over for the next season.[9]

Since the workers are uneducated, their financial records are easily counterfeit to maintain false records of the number of bricks made and the sum of money they owe. The liability adds up as the workers are given a sum of money for basic needs. This adds up to the novel debt and spirals into a sum that is away from the ability of the workers to refund. Neo-bondage exhibits some outstanding differences with the enslavement of the past. It tends to be time-bound to a season or fixed period, not indefinite as in the history; the credit-labour indenture is exclusively economic, missing any element of the previous paternalistic societal defence provide by the landlord; the contract is most regularly done through a employment intermediary; and migrant workers are particularly affected.[10]

 Brick kiln owners in NCR offer money in advance to the workforce who are worried to make ends meet on the understanding that labour will refund these “loans” in exchange for their labour. This “give and take” association is deeply deep-rooted in the brick kiln industry. The owners have an intrinsic interest in giving advance to the workforce, the key one being the maximum utilisation of workforce and the other is the labour bound to work at a lesser wage for particular period of time. The labourers are compelled to take advance from the kiln proprietors since they do not have something else to mortgage apart from their workforce. They are generally offered advance through contractors by which they are bound to wait at the brick kiln sites. Before they complete the time period for this advance because of their economic as well as physical condition they again receive one more advance and this situation of neo-bondage continues.

Constitutional and Bonded Labour Regulations

In accordance with Article 21 of the Constitution of India[11] that guarantees the right to life with dignity to every citizen of India, MGNREGA[12] imparts dignity to the rural people with an assurance of livelihood security[13]. Article 16 of the Constitution[14] guarantees equality of opportunity in matters of public employment and prevents the State from discriminating against anyone in matters of employment on the grounds only of religion, race, caste, sex, descent, place of birth, place of residence or any of them. The Indian Constitution prohibited forced labour under Article 23(1) Part III of the Constitution[15]. Article 24[16] prohibit the employment of children whether as bonded labour or otherwise. The Constitution guarantees the promotion of welfare of the people[17] and eradication of the inequalities[18] and it provides for the State to direct its policy towards securing livelihood, commonhood[19] etc. By the Constitution the operation of a legal system shall be secured[20] and effective provisions[21] were made by the State for the participation of workers in undertakings[22] and for securing just and humane conditions of work[23] and a decent standard of life[24]. Under the Constitution of India, labour is a subject in the Concurrent List where both the Central and State Governments are capable to act out legislation subject to certain matters being retained for the Centre.

Union List Concurrent List
Entry 55 Regulation of labour and safety in mines and oil fields
Entry 22 Trade unions; industrial and labour disputes.
Entry 61 Industrial disputes concerning Union employees
Entry 23 Social security and insurance, employment and unemployment.
Entry 65 Union agencies and institutions for “vocational … training…”
Entry 24 Welfare of labour including conditions of work, provident funds, employers liability, workmen’s compensation, invalidity and old age pension and maternity

The Government of India ratified ILO Convention No. 29 on 30-11-1954, and enacted the Bonded Labour System (Abolition) Act, 1976[25], which stated, “bonded labour means service arising out of loan/debt/advance. It represents the relationship among a creditor and a debtor where, the debtor undertakes to mortgage his services or the services of any of his family members to the lender for a particular or indefinite period with or without earnings accompanied by rejection of alternative of alternative avenues of employment, or to deny him freedom of movement. Then the person would be covered under the definition of a bonded labour”.

Forced labour, or enslavement, continued unabated and passed on from one generation to another. Another Act for workers’ security was the Unorganised Workers’ Social Security Act, 2008[26]. The Act was passed with the objective of providing appropriate and adequate social security to the workers engaged in the unorganised sector of the country. It would be pertinent to mention that ninety-four per cent workforce of the nation is busy in the unorganised sector. So, it is the ethical responsibility of the Government to give social safety to the labour working on such a large scale. The Unorganised Workers’ Social Security Act, 2008, is surely a praiseworthy move in this course but this Act cannot be measured to be sufficient since its provisions come out more as a formality. It is not astonishing that a large figure of workers engaged in the unorganised sector is displeased with the necessities of the Unorganised Workers’ Social Security Act, 2008. The most important issue is that “social security” has not been distinct legally in this Act. Besides, the requirements of the Act are moreover in many conduct insufficient or do not imitate the main objective of providing social security to the work force. Several labour legislations such as the Employees’ Compensation Act, 1923[27]; the Trade Unions Act, 1926[28]; the Minimum Wages Act, 1948[29]; the Maternity Benefit Act, 1961[30]; the Contract Labour (Regulation and Abolition) Act, 1970[31], the Equal Remuneration Act, 1976[32], etc. have been enacted which are related to wanderer workers in an unorganised sector also. It is helpful to note that some pieces of legislation are added universal in character and relate across the board to all categories of the unorganised sector.

Neo-Bondage: A Micro form of bonded labour

Bonded labour, understood as one of a number of forms of non-decent work, should be set in the broader situation of the globalisation and neo-liberalisation of the Indian economy, which has accelerated roughly since the early 1990s. This has led to an important enlargement in development of NCR and thus increase of elevated range structures which needs more and more bricks as well as labourers. In both sectors workers are circular migrants and are one of the groups most vulnerable to bondage[33]. Bonded labour system is the most widespread form of slavery. The bonded labour system disproportionately exploits the susceptible castes and tribes, and migrant people, forcing man, woman and children into a state of perpetual custody. Four types of bonded labourers are identified in the NCR: first, bonded labour where there was a indication of traditional social relations; second, bonded labour in farming; third, bonded labour that was found in rural and urban unorganised and casual sectors; and fourth, teenager bonded labour.

As per the Bonded Labour System (Abolition) Act, 1976 “bonded labour system” is a system of forced, or partly forced, labour beneath which the debtor enters, or has, or is supposed to have entered, into an accord with the creditor. “Bonded labour” means any labour or service rendered under the bonded labour system. “Bonded labourer” means a labourer who incurs, or has, or is presumed to have, incurred, a bonded debt. Bonded labour is a type of forced labour, which is prohibited under international law[34]. “Bonded debt” means an advance obtained, or presumed to be have been obtained, by a bonded labourer under, or in pursuance of the bonded labour system. Once a labourer is rescued from bondage, the arrears or obligation that caused the bondage is extinguished. This uneven system between employers and employees inside the brick kiln business is exacerbated by the detail that workforce do not be given daily wages, but are paid by a piece work arrangement. Any belonging that has been seized is to be returned. The Act protects labourers from all existing and potential liabilities to repay bonded debts, and provides rehabilitation to labourers who have been victims to the system.[35]

The emergence of “neo-bondage” is strongly connected to the reinforcement of the casualisation and the informalisation of employment. Neo-bondage reflects the augment monetisation of product connections and of social relationships, as well as the growth of mass consumption. With the prevailing unemployment rate and sharp fluctuations in the demand for skilled labour, the workers may experience dependence on a solitary owner or an intermediary as a guarantee and job security[36]. The brick kiln labourers, as most of them are migrant labourers are exterior the boundaries of their social hold up network, and roughly all of the government schemes do not benefit those out of their place of residence. Furthermore, due to the seasonality of the brick industry, worker’s earnings are frequently suspended to the end of the period. This means that the workforce is often not given any amount for approximately eight to ten months, and as a consequence, which is often lower than agreed upon.[37] Debt restricts the labourers’ freedom and significantly cheapens wages and driven out of their habitat in search of gainful work, a major chunk of this huge army of labour is recruited in neo-bondage[38]. They may also have a loan from other sources. Workers not only have to have paid off their debt, but also have to be in a position to admission other opportunities. This requires mostly relations and networks, in a context where the workers’ markets remain extremely disjointed. Workers in the labour concentrated brick kiln sector are widely documented to be one of the most exploited sections of the working class in India.

The factors precipitating the susceptibility to bondage in unorganised sectors comprise distress relocation for work, lack of sufficient livelihood opportunities locally, no awareness or right of entry to the services of formal financial institutions and creative assets, illiteracy, existing social inequalities based on social group and civilisation. In destination areas, harsh physical, social and economic hardships, unequal labour conditions, exploitation at the offer of recruiters/middlemen and a total lack of communal protection for these labour further deepens their vulnerability. Majority of the workers are migratory migrants intra-State as well as inter-State migrating with their relatives for six months. In order to speak to the issue of vulnerability of attainment into bondage situation, the Project on Reducing Vulnerability to Bondage in India through Promotion of Decent Work was initiated in the year 2008[39]. The project was operational in the States of Odisha, Andhra Pradesh, Uttar Pradesh, Chhattisgarh, Jharkhand and Bihar. The main focus and finding of the project were regarding the need for scouting rural brick kiln technology. The Report states that[40]:

Every year, around October-November, brick kiln workers travel to other districts of their own States or dissimilar States in search of their income and to protect themselves from the hopeless poverty. They return to their basic villages after a period of 6-9 months, when it rains marking the finish of the brick-making season. Brick kiln workers are uncovered to poor living and working circumstances attached with poor remuneration. Lack of tools and techniques to decrease drudgery, makes brick making a very labour concentrated process. The simple techniques used in some parts have helped, but these techniques require to be refined additional and disseminated extensively. Several reports have established that the workforce and their children are exposed to high concentrations of respirable suspended particulate matter (RSPM), more often during the firing of the bricks (where ash is used as insulator) or during preparation of dough using fly ash, which is often stored uncovered. The workers carry the raw (green) brick and fired (red) bricks on their heads/shoulders with an average load of 9-12 kg which causes physical condition problems, including underdeveloped growth in younger children and young adults, excellent of skulls and women are particularly pretentious. The workers do not get any work-related health and safety training, often sit in awkward position for hours for brick moulding, and do not use boots/gloves while addition the dough. These result in small and major injuries, cuts, bruises, postural trouble, and body aches. Lack of access to medical care/primary healthcare amenities often aggravates the trouble. Lack of clean environment, non-appearance of safe drinking water often marks in disease such as tuberculosis and diarrhoea. Even though the brick workers are uncovered to these occupational hazards, coverage under any sort of indemnity or medical facilities is virtually unheard off.

Conclusion

The decrease of vulnerability to bondage at the brick kilns themselves is a larger challenge for the Government. It is still not clear which division of the Department of Labour should implement labour laws in brick kilns. The pattern of fascinating and disposing labour at brick kilns is one that resembles the practice of contemporary enslavement. The workers who are recruited are brought to a distant off region, frequently cut off from the rest of the town and made to live in appalling conditions. Being ignorant of workers’ rights, they comprise the least level of the pecking order of authority and therefore have no unions or organisations for communal bargaining and to put into effect their rights, they are bound to take loans for their endurance and thus being captured by neo-bondage. The Indian Government’s reply-to address the modern-day slavery or the neo-enslavement is limited to three ministries i.e. Ministry of Labour & Employment, Ministry of Home Affairs, and Ministry of Women and Child Development. The criminal justice system has not yet been able to deliver justice to the victims of enslavement labour, not only in prosecuting the perpetrators but also in taking a long-term measure to prohibit and rehabilitate the victims. There is hardly any inter-ministerial coordination in the direction of working jointly on the issue. The State Governments are required to conduct surveys on a regular basis identify responsive districts which are prone to enslavement labour, find root causes for and forms of bonded labour and implement remedial measures. A special enforcement wing should conduct routine visits to ascertain the implementation of labour laws and welfare programmes in brick kilns.


* Research Scholar, Department of Law, Meerut College, Meerut.  Author can be reached at ravish013@gmail.com.

**Associate Professor, Department of Law, Meerut College, Meerut.  Author can be reached at anuragsinghmcm@gmail.com.

[1] Rinju Rasaily, Breaking the Bondage: Organising Brick Kiln Workers in Rural Punjab (2018) in Redefined Labour Spaces: Organising Workers Post-Liberalised India by Sobin George and Surely Sinha (ed.), Routledge, New York, p. 34.

[2] Brady, Andrew, “Blood Bricks: Ending Modern Day Slavery, International Business Times, UK (28-1-2008).

[3] Singh, Kainth and Gursharan Singh, “Push and Pull Factors of Migration: A Case Study of Brick Kiln Migrant Workers in Punjab” (January 2010).

[4] Centre for Science and Environment Report on Makeover: Conversion of Brick Kiln in Delhi-NCR to a Cleaner Technology, 2018.

[5] Tanya Mathur (ed.), Makeover:  Conversion of Brick kilns in Delhi-NCR to a Cleaner Technology (A Status Report), Centre for Science and Environment, 2018, pp. 8-9.

[6] Brady, Andrew, “Blood Bricks: Ending Modern Day Slavery”, International Business Times, UK (28-1-2014).

[7] Data collected by field survey in Loni (Ghaziabad District) and Sarurpur Kalan (Baghpat District) of Delhi NCR.

[8] Bhukuth, Augendra and Ballet, Jérôme (August 2006), “Is Child Labour a Substitute for Adult Labour?” International Journal of Social Economics, 33 (8): 594-600, https://doi:10.1108/03068290610678734.

[9] Slavery in India’s Brick Kilns and the Payment System: Way Forward in the Fight for Fair Wages, Decent Work and Eradication of Slavery, Anti-Slavery International Volunteers for Social Justice, 2017, p. 7.

[10] J. Breman (2007), Labour Bondage in Western India: From Past to Present, Oxford University Press, Delhi,    p. 7.

[11] http://www.scconline.com/DocumentLink/VN1u87S9.

[12]Mahatma Gandhi National Rural Employment Guarantee Act (MGNREGA), 2005 that aims to ensure livelihood security in rural areas by providing at least 100 days of wage employment in a financial year to every household whose adult members volunteer to do unskilled manual work http://www.scconline.com/DocumentLink/7xf2szwQ.

[13] Jawahar Rozgar Yojana, Employment Assurance Scheme, National Food for Work Programme, Jawahar Gram Samridhi Yojana and Sampoorna Grameen Rozgar Yojana—MGNREGA recognised employment as a constitutional right.

[14] http://www.scconline.com/DocumentLink/k8TMppSJ.

[15] Art. 23, Constitution of India.  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 the law. http://www.scconline.com/DocumentLink/1RoWjnWY

[16]  http://www.scconline.com/DocumentLink/MhB7I48Z.

[17] Art. 38(1), Constitution of India. — The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may, a social order in which justice, social, economic and political shall inform all the institutions of the national life.

[18] Art. 38(2), Constitution of India. — The State shall in particular, strive to minimise the inequalities in income facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different avocations.

http://www.scconline.com/DocumentLink/pd9EUWHe

[19] Art. 39, Constitution of India: (a) that the citizens, men and women equally, have the right to an adequate means of livelihood; and (e) that the health and strength of workers, men and women, and tender age of children are not forced by economic necessity to enter avocations unsuited to their age or strength.

[20] Art. 39-A, Constitution of India http://www.scconline.com/DocumentLink/66p43PQk: The operation of a legal system shall be secured by the State which promotes justice, … to ensure that opportunities for securing justice are denied to any citizen by reason of economic or other disabilities.

http://www.scconline.com/DocumentLink/HgecD61Z

[21] Art. 41, Constitution of India: …shall make effective provisions for securing the right to work, to education and to public assistance in case of employment….

http://www.scconline.com/DocumentLink/4K1yIhAx

[22] Art. 43-A, Constitution of India: The State shall take steps, by suitable legislation or in any other way, to secure the participation of workers in the management of undertakings, establishments or other organisations engaged in any industry.

http://www.scconline.com/DocumentLink/tM0669I8

[23] Art. 42, Constitution of India: The State shall make provisions for securing just and humane conditions of work and for maternity relief.

http://www.scconline.com/DocumentLink/9YVL1E6k

[24] Art. 43, Constitution of India: The State shall endeavour to secure, by suitable legislation or economic organization or in any other way to all workers, agricultural, industrial or otherwise, work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social opportunities and in particular, the State shall endeavour to promote cottage industries on an individual or cooperative basis in rural areas.

http://www.scconline.com/DocumentLink/C86Lq30R

[25] http://www.scconline.com/DocumentLink/537oMEWB.

[26] http://www.scconline.com/DocumentLink/8LH2W50g.

[27] http://www.scconline.com/DocumentLink/uttEfohO.

[28] http://www.scconline.com/DocumentLink/4jkI2Q88.

[29] http://www.scconline.com/DocumentLink/IqRnX11j.

[30] http://www.scconline.com/DocumentLink/07hBlTVN.

[31] http://www.scconline.com/DocumentLink/LhtVkG1F.

[32] http://www.scconline.com/DocumentLink/s5G12f5T.

[33] Abhijit Dasgupta and N. Purendra Prasad (2018), Silent Violence and Neo-Bondage in the Urban Informal Sector in India Migration Report 2017: Forced Migration by S. Irudaya Rajan (ed.), Taylor and Francis, New Delhi, p. 212.

[34] ILO Convention (No. 29) Forced Labour Convention (1930); ILO Convention (No.105) Concerning the Abolition of Forced Labour (1957); Protocol to the 1930 Forced Labour Convention (2014).

[35] State Action Plan for Release, Rescue and Rehabilitation of Bonded Labour and Implementation of Bonded Labour System (Abolition) Act, 1976 GO(Ms) No. 163 Labour and Employment (U1) Department dated 21-9-2017.

[36] Ibid.

[37] https://en.wikipedia.org/wiki/Blood_Bricks_Campaign #Modern_slavery_in_the_Indian_brick_kiln_industry.

[38] Jan Breman (2019), Capitalism, Inequality and Labour in India, Cambridge University Press, United Kingdom, p. 238.

[39] Joint collaboration of Ministry of Labour and Employment (MoLE), Government of India; International Labour Organisation (ILO), India and the Department of Labour and Employment, Tamil Nadu.

[40] International Labour Organisation (2013), Reducing Vulnerability to Bondage in India through Promotion of Decent Work, available at <https://www.ilo.org/newdelhi/whatwedo/projects/WCMS_195622/lang–en/index.htm>, assessed on 10-4-2020.

Law made Easy

[Disclaimer: This note is for general information only. It is NOT to be substituted for legal advice or taken as legal advice. The publishers of the blog shall not be liable for any act or omission based on this note]

“Justice will not be served until those who are unaffected are as outraged as those who are.”

 – Benjamin Franklin

Objective

It is written with an objective to reflect on the laws currently in force in India, to tackle the global menace of human trafficking and contemplate the journey ahead to reach towards elimination of this socio-politico-economic evil through legislative competence, executive efficiency and judicial courage.

Introduction

According to the definition of United Nations: “trafficking is any activity leading to recruitment, transportation, harbouring or receipt of persons, by means of threat or use of force or a position of vulnerability”. Human trafficking is the trade of humans for the purpose of forced labour, sexual slavery, or commercial sexual exploitation for the trafficker or others. This may encompass providing a spouse in the context of forced marriage or the extraction of organs or tissues, including for surrogacy and ovary removal. It can happen in any community and victims can be of any age, race, gender or nationality. Traffickers might use violence, manipulation, or false promises of well-paying jobs or romantic relationships to lure victims into trafficking situations. People can be trafficked and exploited in many forms, including being forced into sexual exploitation, labour, begging, crime (such as growing cannabis or dealing drugs), domestic servitude, marriage or organ removal. Human trafficking is an egregious human rights violation that occurs throughout the world. Due to its complex cross-border nature, human trafficking requires a coordinated, multi-disciplinary national and international response. Human trafficking is the third largest organised crime after drugs and the arms trade across the globe.

Legal Framework against Human Trafficking in India

At present the legal regime of trafficking in humans is explicitly and implicitly governed by the following statutes towards curbing the menace. The table containing relevant provisions is as follows:

Immoral Traffic (Prevention) Act, 1956

Section 3 – It provides for punishment to a person for keeping a brothel or allowing premises to be used as a brothel or who is in charge of any such premises either by himself or through a tenant, occupier, etc.


Section 4 – It provides for punishment to any person over 18 years of age, living on the earnings of prostitution of another person.


Section  5 – It provides for punishment to any person who is involved in procuring, inducing or taking another person for the sake of prostitution.


Section 6 – It provides for punishment to a person who detains another person with or without his consent in any brothel or any premises for prostitution with an intent that such detained person may have sexual intercourse with any person who is not the spouse of such detained person.


Section 7 – Any person who carries on prostitution and the person with whom such prostitution is carried on in any premises which is within close proximity to a public place, including a hospital, nursing home, place of religious worship, hostel, educational institution, or in an area notified under the provisions of the Act, can be punished with imprisonment for a term of three months.


Section 8 – Seducing or soliciting for the purpose of prostitution is also an offence and punishable with imprisonment up to six months or a fine up to Rs 500, in the case of a first conviction. In case of a subsequent conviction, the prison sentence can be extended up to one year including a fine of Rs 500. However, if the person soliciting is a man, the statute provides that he shall be punishable with not less than seven days imprisonment which may be extended to three months.


Section 18 – A Magistrate can order the immediate closure of a place that is being used as a brothel or as a place for prostitution and is within 200 meters of any “public place” as referred to in Section 7 above, and direct the eviction from the premises from where any person is ostensibly carrying out prostitution on receipt of information from the police or otherwise. The occupier is given only seven days notice for eviction from such premises.


Section 20 – It empowers a Magistrate, on receiving information that any person residing in or frequenting any place within the local limits of his jurisdiction is a prostitute, to issue notice to such person requiring him to appear before the Magistrate and show cause why he should not be removed from the place and be prohibited from re-entering it, and an order to be passed by the Magistrate effecting the same on merits, non- compliance of which will attract punishment in accordance with this section.


Section 21 – The State Government may in its discretion establish as many protective homes and corrective institutions under this Act as it thinks fit and such homes and institutions when established shall be maintained in such manner as may be prescribed. Whoever establishes or maintains a protective home or corrective institution except in accordance with the provisions given shall be punishable under this section.


Section 22-A – If the State Government is satisfied that it is necessary for the purpose of providing for speedy trial of offences under this Act in any district or metropolitan area, it may, by notification in the Official Gazette and after consultation with the High Court, establish one or more Courts of Judicial Magistrates of the First Class, or, as the case may be, Metropolitan Magistrate, in such district or metropolitan area.


Section 22-B – Notwithstanding anything contained in the Code of Criminal Procedure, 1973, the State Government may, if it considers it necessary so to do, direct that offences under this Act shall be tried in a summary way by a Magistrate [including the presiding officer of a court established under sub-section (1) of Section 22-A] and the provisions of Sections 262 to 265 (both inclusive) of the said Code, shall, as far as may be, apply to such trial

Constitution of India

Article 23 –  It specifically prohibits “traffic in human beings and begar and other similar forms of forced labour”.


Article 39 – It states that men and women should have the right to an adequate means of livelihood and equal pay for equal work; that men, women and children should not be forced by economic necessity to enter unsuitable avocations; and that children and youth should be protected against exploitation. It is enshrined in the Constitution in the form of a directive to be followed while formulating policies for the State.


Article 39-A – It directs that the legal system should ensure that opportunities for securing justice are not denied to any citizen because of economic or other disabilities.


 Note: Articles 14, 15, 21, 22 and 24 also emcompass certain provisions relating to human trafficking.

Penal Code, 1860

Penal Code, 1860 specifically deals with two kinds of kidnapping:
(a)  Section 360Kidnapping from India

(b) Section 361– Kidnapping from lawful guardianship


Section 362 – A trafficked person can also be subjected to an act of abduction covered under this section which involves using of deceitful means by another and thereby forcefully compelling this person to go from any place.


Section 363-A specifically punishes any person who kidnaps or maims a minor for purposes of begging.


Section 365 punishes any person who kidnaps or abducts another person with intent to secretly and wrongfully confine him/her.


Section 366 – punishes any person who kidnaps, abducts or induces woman to compel her marriage against her will, or be forced/seduced to have illicit intercourse.


Section 366-A punishes any person who by any means whatsoever induces any minor girl under the age of 18 years to go from any place or to do any act that such girl may be forced or seduced to have illicit intercourse with another person.


Section 370 – By the Criminal Law (Amendment) Act, 2013, this section punishes all acts of trafficking in human beings and their exploitation.


Section 372 – If any person sells, lets to hire  or disposes of any other person who is a minor i.e. under the age of 18 years for purposes of prostitution, etc. shall be punished with imprisonment of either description for a term which may extend to 10 years and shall also be liable to fine.


Section 373 – If any person buys, hires or obtains possession of  any other person who is a minor i.e. under the age of 18 years for purposes of prostitution, etc. shall be punished with imprisonment of either description for a term which may extend to 10 years and shall also be liable to fine.


Sections 354, 354-A , 354-B , 354-C, and 354-D – These sections punish any person who assaults or uses criminal force on a woman intending to outrage modesty, disrobe her, or to commit an offence of voyeurism or stalking. Sections 354, 354-A, 354-B, 354-C, and 354-D were added by the Criminal Law (Amendment) Act, 2013.


Section 366-B – Any girl under age of 21 years being imported from a foreign country by a person with an intent that she will be forced or seduced to illicit intercourse with another person, the person so importing shall be punishable with imprisonment which may extend to ten years, and shall also be liable to fine.


Sections 375 and 376 – These sections were added to make the justice-delivery system more responsive to the sexual offences against women. It explicitly deals with the definitions of rape, gang rape, repeatedly raped which is a major consequence of trafficking and also lays down punishments for such acts under the said sections.


Section 374 –The section defines that any person who compels another person to labour against his will shall be punished with imprisonment up to 1 year or fine or both. This section punishes those people who are involved in trafficking in humans with an intention to forced labour and grave exploitation.


Bonded Labour System (Abolition) Act, 1976

[Read here]

An Act to provide for the abolition of bonded labour system with a view to preventing the economic and physical exploitation of the weaker sections of the people. The Act prohibits anyone from making any advance or compelling any person to render any bonded labour and states further that any agreement or custom requiring any person to do work as a bonded labour is void and provides for punishment for anyone who compels any person to render bonded labour or advance any bonded debt. Punishment in both cases is imprisonment up to 3 years and fine up to 2000 rupees. The bonded laborers are to be treated as victims and not as offenders.


Child and Adolescent Labour (Prohibition and Regulation) Act, 1986

[Read here]

An Act to prohibit the engagement of children in all occupations and to prohibit the engagement of adolescents in hazardous occupations and processes. It prohibits employment of children in hazardous industries and lays down safety measures and other requirements which shall be met irrespective of what is stated in other labour legislations.


Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989

[Read here]

An Act to prevent the commission of offences related to atrocities against the members of the Scheduled Castes and the Scheduled Tribes, to provide for Special Courts and exclusive Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences. Many victims are from marginalised groups because traffickers are targeting on vulnerable people in socially and economically backward areas. This Act provides an additional tool to safeguard women and young girls belonging to SC/ST and also creates greater burden on the trafficker to prove his lack of complicity in the crime. This can be effective if the offender knows the status of victim. It specifically covers certain forms of trafficking, forced or bonded labour and sexual exploitation of women. A minimum punishment of 6 months is provided that could extend up to 5 years in any offence covered under the Act regarding trafficking in humans.


 Transplantation of Human Organs and Tissues Act, 1994

[Read here]

This Act deals with criminal responsibility in cases of harvesting of organs and trafficking of persons for this purpose. The perpetrator includes traffickers, procurers, brokers, intermediaries, hospital or nursing staff and medical laboratories and their technicians involved in the illegal transplant procedure. Section 11 declares prohibition of removal or transplantation of human organs for any purpose other than therapeutic purposes and Section 19 deals with commercial dealing in human organs and clarifies that it punishes those who seek willing people or offer to supply organs and such traffickers and alike shall be punished with imprisonment for a term which shall not be less than five years but which may extend to ten years and shall be liable to fine which shall not be less than twenty lakh rupees but may extend to one crore rupees.


Protection of Children from Sexual Offences Act, 2012

[Read here]

It has been drafted to strengthen the legal provisions for the protection of children from sexual abuse and exploitation. For the first time, a special law has been passed to address the issue of sexual offences against children. Sexual offences are currently covered under different sections in Penal Code. However, Penal Code, 1860 does not provide for all types of sexual offences against children and, more importantly, does not distinguish between adult and child victims.


Criminal Procedure Code, 1973

[Read here]

Responsibility for providing compensation to trafficking victims is fragmented between the Central Government and individual States. This is largely the result of Section 357 and Section 357-A CrPC. When the punishment itself contemplates sentence or fine Section 357 CrPC provides that the fine can be passed on to the victim. Even if that is not so, Section 357-A CrPC have the fund — a State fund, which can be extended to the victims of any crime (not limited to trafficking) who have suffered loss or injury. However, it fails to note the form or degree of such compensation.


Evolution through Judicial Pronouncements

 What is Human Trafficking

It was clearly laid down as early as in 1953 in Raj Bahadur v. State of W.B., 1953 SCC OnLine Cal 129 that traffic in human beings mean to deal in men and women like goods, such as to sell or let or otherwise dispose of. It would include traffic in women and children for immoral or other purposes.

Heinous Nature of the Crime vis-à-vis Moral Culpability

The Court observed in Vishal Jeet v. Union of India, (1990) 3 SCC 318 that:

“The causes and evil effects of prostitution maligning the society are so notorious and frightful that none can gainsay it. It is highly deplorable and heartrending to note that many poverty stricken children and girls in the prime of youth are taken to ‘flesh market’ and forcibly pushed into the ‘flesh trade’ which is being carried on in utter violation of all cannons of morality, decency and dignity of humankind. There cannot be two opinions—indeed there is none—that this obnoxious and abominable crime committed with all kinds of unthinkable vulgarity should be eradicated at all levels by drastic steps.”

 Human Trafficking and Child Prostitution

In Vishal Jeet v. Union of India, (1990) 3 SCC 318  the Court laid down following directions in this regard:

  1. All the State Governments and the Governments of Union Territories should direct their law enforcing authorities concerned to take appropriate and speedy action in eradicating child prostitution.
  2. The State Governments and the Governments of Union Territories should set up a separate Advisory Committee within their respective zones to make suggestions regarding the measures to be taken and the social welfare programmes to be implemented for the children and girls rescued from the vices of prostitution.
  3. All the State Governments and the Governments of Union Territories should take steps in providing adequate and rehabilitative homes manned by well-qualified trained social workers, psychiatrists and doctors.
  4. The Union Government should set up a committee of its own to evolve welfare programmes on the national level for the care, protection, rehabilitation, etc. of the young fallen victims and to make suggestions of amendments to the existing laws for the prevention of sexual exploitation of children.
  5. The Central Government and the Governments of States and Union Territories should devise a machinery of its own for ensuring the proper implementation of the suggestions that would be made by the respective committees.
  6. The Advisory Committee can also delve deep into devadasi system and jogin tradition and give their valuable advice and suggestions as to what best the Government could do in that regard.

Human Trafficking and Bonded Labour

The Supreme Court in Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161 has elucidated the rehabilitation of bonded labour and directed the Government to award compensation to released/rescued bonded labour under the provisions of Bonded Labour System (Abolition) Act, 1976 after taking note of serious violation of fundamental and human rights:

“The rehabilitation of the released bonded labourers is a question of great importance, because if the bonded labourers who are identified and freed, are not rehabilitated, their condition would be much worse than what it was before during the period of their serfdom and they would become more exposed to exploitation and slide back once again into serfdom even in the absence of any coercion. The bonded labourer who is released would prefer slavery to hunger, a world of ‘bondage and illusory security’ as against a world of freedom and starvation.”

It may be pointed out that the concept of rehabilitation has the following four main features as addressed by the Secretary, Ministry of Labour, Government of India to the various States Governments:

  • Psychological rehabilitation must go side by side with physical and economic rehabilitation.
  • The physical and economic rehabilitation has 15 major components, namely, allotment of house sites and agricultural land, land development, provision of low cost dwelling units, agriculture, provision of credit, health medical care and sanitation, supply of essential commodities, education of children of bonded labourers and protection of civil rights, etc.
  • There is scope for bringing about an integration among the various central and State sponsored schemes for a more qualitative rehabilitation and to avoid duplication.
  • While drawing up any scheme/programme of rehabilitation of freed bonded labour, the latter must necessarily be given the choice between the various alternatives for their rehabilitation and such programme should be finally selected for execution as would meet the total requirements of the family of freed bonded labourers to enable them to cross the poverty line on the one hand and to prevent them from sliding back to debt bondage on the other.

The Supreme Court in PUCL v. State of T.N., (2013) 1 SCC 585 directed the District Magistrates to effectively implement Sections 10, 11 and 12 of the Bonded Labour System (Abolition) Act, 1976 and expected them to discharge their functions with due diligence, empathy and sensitivity, taking note of the fact that the Act is a welfare legislation.

Human Trafficking and Child Labour

In Lakshmi Kant Pandey v. Union of India, (1984) 2 SCC 244 P.N. Bhagwati, J., observed:

6. It is obvious that in a civilised society the importance of child welfare cannot be over-emphasised, because the welfare of the entire community, its growth and development, depend on the health and well-being of its children. Children are a ‘supremely important national asset’ and the future well-being of the nation depends on how its children grow and develop.”

The Supreme Court in M.C. Mehta v. State of T.N., (1996) 6 SCC 756 seeing the severe violation of fundamental rights in cases of child labour observed:

“… if there is at all a blueprint for tackling the problem of child labour, it is education. Even if it were to be so, the child of a poor parent would not receive education, if per force it has to earn to make the family meet both the ends. Therefore, unless the family is assured of income aliunde, problem of child labour would hardly get solved; and it is this vital question which has remained almost unattended.

… if employment of child below the age of 14 is a constitutional indiction insofar as work in any factory or mine is concerned, it has to be seen that all children are given education till the age of 14 years in view of this being a fundamental right now, and if the wish embodied in Article 39(e) that the tender age of children is not abused and citizens are not forced by economic necessity to enter avocation unsuited to their age, and if children are to be given opportunities and facilities to develop in a healthy manner and childhood is to be protected against exploitation as visualised by Article 39(f), it seems to us that the least we ought to do is see to the fulfilment of legislative intendment behind enactment of the Child and Adolescent Labour (Prohibition and Regulation) Act, 1986.”

 In view of the Child and Adolescent Labour (Prohibition and Regulation) Act, 1986 the offending employer must be asked to pay compensation for every child employed in contravention of the provisions of the Act a sum of Rs 20,000 which is to be deposited in Child Labour Rehabilitation-cum-Welfare Fund.

Constitution of Committee to Combat Trafficking in Humans

In Gaurav Jain v. Union of India, (1997) 8 SCC 114, the Supreme Court passed an order directing, inter alia, the constitution of a committee to make an in-depth study of the problems of prostitution, child prostitution, and children of prostitutes, to help evolve suitable schemes for their rescue and rehabilitation.

The Supreme Court observed:

27. … The ground realities should be tapped with meaningful action imperatives, apart from the administrative action which aims at arresting immoral traffic of women under the Immoral Traffic (Prevention) Act through inter-State or Interpol arrangements and the nodal agency like the CBI is charged to investigate and prevent such crimes.”

The Central Government pursuant to the directions issued by the Supreme Court in Gaurav Jain case constituted a “Committee on the Prostitution, Child Prostitutes and Plan of Action to Combat  Trafficking and Commercial and Sexual Exploitation of Women and Children”.  

Vocational Trainings and Social Welfare Boards

The Supreme Court in Budhadev Karmaskar v. State of W.B., (2011) 11 SCC 538 had issued notice to all States while noting down the concern on the pathetic conditions of sex workers:

 “… we strongly feel that the Central and the State Governments through Social Welfare Boards should prepare schemes for rehabilitation all over the country for physically and sexually abused women commonly known as prostitutes as we are of the view that the prostitutes also have a right to live with dignity under Article 21 of the Constitution of India since they are also human beings and their problems also need to be addressed.

A woman is compelled to indulge in prostitution not for pleasure but because of abject poverty. If such a woman is granted opportunity to avail some technical or vocational training, she would be able to earn her livelihood by such vocational training and skill instead of by selling her body. Hence, we direct the Central and the State Governments to prepare schemes for giving technical/vocational training to sex workers and sexually abused women in all cities in India.”

Critical Analysis — Old Wine in a New Bottle

There need to be a comprehensive single legislation that will cover all forms of trafficking. Hence, the Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018 was introduced in Lok Sabha by the Minister of Women and Child Development, Ms Maneka Gandhi on 18-7-2018 and passed in that House on 26-7-2018 which eventually lapsed later due to dissolution of the 16th Lok Sabha. The Bill provided for the prevention, rescue, and rehabilitation of trafficked persons. The present legislation/well intentioned but lapsed Bill ignored the factors that drive people to risky situations and failed to integrate the lessons learned by anti-trafficking stakeholders since the adoption of the United Nations Trafficking Protocol popularly known as “Palermo Protocol”. It adopted a belief that trafficking can be stopped through harsh punishments, rather than addressing root causes, and this indeed may have undermined, rather than protected, the human rights of trafficked persons. Implementing a rights-based approach that facilitates, and does not criminalise migration and one that promotes decent work is the most constructive approach to prevent human trafficking.  This is expected to be the litmus test while drafting the next Bill.

Conclusion

While the lapsed Bill was a well-timed and well-intentioned attempt by the Indian Government to enact a comprehensive legislation which will tackle human trafficking and its fundamental problems. However, the Government was supposed to adopt a broader perspective towards trafficking in accordance with Expert Committee recommendations. Ensuring effective legislation and its implementation will take time and patience but considering Modi Government has a clear majority in Parliament and that the Women and Child Development Ministry is fully devoted towards fighting this menace, it is hoped that any new Bill will bring all stakeholders on board to enact a people-centered social legislation which addresses some of the problems identified here and in line with the expert committee recommendations.

Thus, it may be concluded using the words of Justice V.R. Krishna Iyer, without prejudice to any one gender,

“No nation, with all its boasts, and all its hopes, can ever morally be clean till all its women are really free — free to live without sale of their young flesh to lascivious wealth or commercialising their luscious figures….”

Case BriefsHigh Courts

Kerala High Court: In a petition filed to quash the ongoing prosecution against the petitioner under the Juvenile Justice (Care and Protection of Children) Act, 2015 against the petitioner, the Bench of B. Sudheendra Kumar, J., while observing that the prosecution failed to prove that the minor girl working in the petitioner’s house was under bondage or was doing forced labour, also dealt with the issue of employment of children in households and of exploitation of child employees with special emphasis on the interpretation of Sections 79, 75, 76 and 78 of the 2015 Act. It was held by the Court that, employment of a child in households is permissible to the extent that the child is not kept in bondage.

The petitioner had been accused under Sections 75 and 79 of the Juvenile Justice Act, 2015 which deal with Punishment for Cruelty to Child and Exploitation of a Child Employee, respectively for allegedly engaging a minor girl as domestic help in his house. It was argued by the counsel of petitioner that there was no allegation that the minor victim girl was employed by the petitioner in bondage; therefore Section 79 of the 2015 Act is not attracted

It was observed by the Bench that in order to constitute an offence under Section 79, it must be looked whether the victim girl was employed by the petitioner in bondage. Since the term ‘bondage’ has not been defined in the Act, the Court had to rely on meanings provided for the term in various dictionaries. Also relying on other Central legislations and several International Conventions, the Court came to the conclusion that “engaging a child for the purpose of employment as such is not prohibited under Section 79 of the Act, if the engaging of the child for the employment is not by keeping the child in bondage.” It was further observed that the fundamental difference between ‘employment in bondage’ and ‘employment without any bondage’ is that a labourer does not have the liberty to leave the employment without the permission of the employer in the former; whereas, a labourer has the liberty to leave the employment without the permission of the employer in the latter. Though the victim had been employed as a house maid with the petitioner, it was established that she had not been kept in bondage; the petitioner had not withheld the earnings of the child or had used them for his purpose; and she had also not been physically or mentally harassed by anyone in the house. Therefore, further proceedings against the petitioner were quashed. [A. Nizamudhin v. Station House Officer, 2017 SCC OnLine Ker 7324, decided on 30.05.2017]