Calcutta High Court
Case BriefsHigh Courts

Calcutta High Court: Ajoy Kumar Mukherjee, J. allowed a revisional application which was filed for quashing of the proceeding under Sections 3, 4, 5, 7 and 18 of the Immoral Traffic (Prevention) Act, 1956 (in short, I.T.(P) Act) read with Section 120-B of the Penal Code, 1860 and also for setting aside the order whereby the Additional Chief Metropolitan Magistrate had taken cognizance against the present petitioner.

The petitioner is a non-residential Indian businessman and in course of such business he visited Kolkata in the month of January, 2019. On 04-01-2019, the petitioner was having a backache and the petitioner was looking for a place where he could get a back massage, he found a place on the internet and went there for the service. During the session a raid was conducted and the petitioner was informed by the police officer that the alleged place was involved in certain offences and that he was required for the purpose of investigation. He was later informed that he was arrested in connection with a police case registered against the said Spa for violation of said I.T.(P) Act. However, the petitioner was granted ad interim bail on 05-01-2019.

The advocate for the petitioner strenuously argued that the petitioner at best can be termed as a customer and accordingly, he cannot be held liable under any of the provisions of the said Act. The advocate representing the State submitted that the petitioner was caught red-handed from the brothel and after completion of investigation, the investigating agency had rightly submitted a charge-sheet against the petitioner under Sections 3, 4, 5, 7 and 18 of the said Act, on the basis of materials collected during investigation.

It was specifically mentioned in the charge sheet that accused 1, 2 and 4 to 10 were living on the earning of prostitution and accused 3 (present petitioner) being “customer” was receiving sexual enjoyment in lieu of money.

The Court observed that there was no material in the case diary which could suggest that the present petitioner was living on earning of the prostitution. It was further noted that there was nothing to show that the petitioner exercised control, direction or influence over the sex-worker’s movement in the way, which can be shown to be aiding or abetting sex work. Mere visiting the house of a sex worker as customer cannot be presumed to be living on earnings of sex workers. To invoke the presumption it must be shown that he was found in the company of the sex worker on some other occasion.

Prostitution per se is not prohibited under I.T. (P) Act but it is also equally true that a “customer” may virtually encourages prostitution and may exploit the sex worker for money but in the absence of any specific allegation and materials, the Court had serious doubt as to how present petitioner (accused 3) who was according to prosecution case merely a “customer” can be convicted with the help of materials in the case diary. and under the said provisions of law.

The Court while allowing the application found that the sections under which the cognizance had been taken by the Magistrate against the present petitioner are bad in law and the said cognizance was taken without considering the materials in the case diary. The Court quashed the chargesheet and set aside the cognizance of offences under the the I.T. (P) Act.

[Suresh Babu v. State of West Bengal, 2022 SCC OnLine Cal 1485, decided on 13-06-2022]


Advocates who appeared in this case :

Mr Tusher Kanti Mukherjee and Mr Abu Abbas Uddin, Advocates, for the Petitioners;

Mr Madhusudan Sur and Mr Dipankar Paramanick, Advocates, for the State;


*Suchita Shukla, Editorial Assistant has reported this brief.

Calcutta High Court
Case BriefsHigh Courts

Calcutta High Court: The Division Bench of Ananya Bandyopadhyay and Joymalya Bagchi, JJ. rejected a bail application in the matter of trafficking.

The Court perused the report which stated that victims of trafficking were given psychological counseling on 14-06-2022. Request had been made for grant of interim compensation as per law. Steps were taken for extending necessary protection to the said witnesses.

Prima facie material showed prostitution was carried out in the premises owned by the petitioner. Senior Advocate contended that property had been let out to another person.

The Court was of the view that such defence requires to be considered in the course of trial. However, keeping in mind the nature of the offence which has far reaching and adverse social impact and as the vulnerable victims were yet to be examined, it is not prudent to release the petitioner on bail at present. The Court displayed its anguish over the indifferent manner in which cases involving sex trafficking of minor girls were being conducted. The Court opined that cases require to be investigated by a specialised agency manned by police personnel who are duly sensitised in the matter. Victims in such cases are either women or minor coming from weak and marginal sections of society. They require proper protection, support and assistance including psychological counselling.

The Court directed the Director General of Police, West Bengal to take necessary steps so that cases involving trafficking of women particularly minors for sexual exploitation are transferred to the Anti Human Trafficking Unit and investigate by specialised officers preferably lady officers. Steps be taken during investigation to extend protection and support in the form of support person, counseling and interim compensation as per law to such victims.

[Ved Prakash Arya v. State of West Bengal, 2022 SCC OnLine Cal 1725, decided on 15-06-2022]


Advocates who appeared in this case :

Mr Sekhar Kr. Basu, Sr. Adv., Mr Debasish Roy, Mr Antarikhya Basu, Mr Sayan Mukherjee, Ms Madhumita Basak, Advocates, for the petitioner;

Mr Saswata Gopal Mukherjee, P.P., Mr Madhusudan Sur, A.P.P., Mr Dipankar Paramanick, Advocates, for the State.


*Suchita Shukla, Editorial Assistant ha reported this brief.

Case BriefsHigh Courts

Bombay High Court: Mangesh S. Patil, J., while upholding the decision of Special Judge elaborated on the Sections of POCSO Act in light of a minor being induced to be involved in the sex trade.

Instant appeal was filed under Section 374 of the Code of Criminal Procedure against the conviction of the appellants for offences punishable under Section 370 read with Section 34 of the Penal Code, 1860, under Section 5 and 6 of the Immoral Traffic Prevention Act (PITA) and under Section 4 read with Section 17 of Protection of Children from Sexual Offences Act (POCSO).

Appellants are mother and daughter.

PW 4 had received information that the appellants were running a brothel.

During the raid conducted, respondent 2 who was then 17 years of age was found in a room with constable Bahirwal. A specified denomination currency note of Rs 500/- was found in possession of the appellant 2. Five to six used condoms and 200 pieces of unused condoms in a packet were found.

Respondent 2 (victim) and appellants were taken to the Police Station for the offences punishable under Section 366A, 370 372 read with Section 34 of the Penal Code, 1860, Section 3, 4,5, 6 and 7 of the PITA and Section 12 and Section 4 read with Section 17 of the POCSO Act.

Further, appellants were acquitted of the offences punishable under Section 366A and 372 of the Penal Code, 1860, of Section 12 of the POCSO Act and Section 7 of the PITA.

Analysis, Law and Decision

Age of the Victim

 Bench observed that when there is ample evidence in the form of school record which duly stands corroborated by the medical age determination test, though the latter is only an approximation, the former being concrete is sufficient to determine and conclude, as has been rightly done by the Special Court that the victim was less than 16 years of age at the relevant time and was, therefore, a child under POCSO Act as also under the PITA.

It was also noted in view of the circumstances and evidence that the victim (PW 1) had apparently willingly succumbed to the sexual exploitation.

Further, at no point of time, the victim seemed to have made any attempt to escape.

Even according to the victim, she was lodged in the house of the appellants for a period of about a month and was subjected to sex twice a day. Not only this but even while narrating the history to the Medical Officer Dr Shahane (PW 6) she disclosed that she was willingly working as a sex worker for a month.

 On noting the fact that she was a child within the meaning of Section 2(d) of the POCSO Act and Section 2(aa) of the PITA, her consent became irrelevant, and it was not a consent in the eye of law.

In view of the provisions of Section 29 of the POCSO Act, a presumption regarding commission of the offences under the Act needed to be raised as has been rightly done by the Special Judge. Appellants miserably failed to displace the burden cast upon them.

Coming to the ingredients for the individual offences for which the appellants have been convicted, so far as Section 370 of the Penal Code is concerned, i.e. for trafficking of person, even if it is concluded that since Shantabai had not been arrayed as an accused and therefore there was no evidence in respect of actual sale by her and purchase by the appellants of the victim on overall appreciation of the evidence it is quite apparent that the victim was induced into trade for the obvious monetary gain which is nothing but a trafficking as defined in Clause Sixthly of Sub Section 1 of Section 370 of the IPC.

As per the provisions of Section 5 and 6 of PITA, the former punishes procurement or inducement or taking a person for the sake of prostitution whereas Section 6 is concerned obviously the victim (PW 1) was detained in the house of the appellants with intent that she may have sexual intercourse with the persons who were not her spouse which is sufficient to constitute the offence.

Turning to the offence punishable under Section 17 read with Section 4 of the POCSO Act, Section 17 provides for punishment for abetment of any offence under the POCSO Act. Whereas Section 4 provides for punishment for penetrative sexual assault. Section 3 defines penetrative sexual assault to mean the different acts provided for therein.

Since the victim was made to succumb to the penetrative sexual assault by various customers and the appellants had induced her into that trade, it could easily be concluded that they committed an offence punishable under Section 17 and were rightly convicted and sentenced by the Special Judge.

Therefore, no illegality was found in the impugned judgment and order convicting and sentencing the appellants.

In view of the above discussion, appeal was dismissed. [Sunita v. State of Maharashtra, 2021 SCC OnLine Bom 1631, decided on 9-08-2021]


Advocates before the Court:

Advocate for the Appellants: Mr Aniket Vagal.

APP for Respondent No. 1/State: Mr S. N. Morampalle.

Advocate for Respondent 2: Mrs Rashmi S. Kulkarni.

Case BriefsInternational Courts

European Court of Human Rights (ECHR): Chamber composed of Yonko Grozev, President, Tim Eicke, Faris Vehabović, Iulia Antoanella Motoc, Armen Harutyunyan, Pere Pastor Vilanova, Jolien Schukking, judges, and Andrea Tamietti, Section Registrar, first time had the occasion to address a case concerning the prosecution of a victim, or potential victim of trafficking.

Crux of the application was that the said applications concerned the prosecution of the (then) minor applicants who were recognised as trafficking victims for criminal offences connected to their work as gardeners in cannabis factories were

Applicant’s principal complaint is that by prosecuting them for criminal offences connected to their work in the cannabis factories the State failed in its duty to protect them as victims of trafficking.

Applicants relied upon Article 26 of the Anti-Trafficking Convention which required the Contracting States to provide for the possibility of not imposing penalties on victims of trafficking for their involvement in unlawful activities to the extent that they have been compelled to act as they did

Questions to be considered by the Court:

  • Whether, on the facts of the cases at hand, the respondent State complied with its positive obligations under Article 4 of the Convention?

Clear evidence appeared to indicate that the cultivation of cannabis plants was an activity commonly carried out by child trafficking victims. Court stated that the police and subsequently the CPS should have been aware of the existence of circumstances giving rise to a credible suspicion that the minors were trafficked.

Hence, a positive obligation to take operational measures to protect the applicants as potential victims of trafficking arose after the minors were discovered.

  • Whether State fulfilled its duty under Article 4 of the Convention to take operational measures to protect minors?

Bench stated that it is well-established that both national and transnational trafficking in human beings, irrespective of whether it is connected with organized crime, falls within the scope of Article 4 of the Convention.

Court made it clear that where an employer abuses his power or takes advantage of the vulnerability of his workers in order to exploit them, they do not offer themselves work voluntarily.

“…prior consent of the victim is not sufficient to exclude the characterisation of work as forced labour.” [Chowdhury v. Greece, No. 21884/15, § 96, 30 March 2017]

Obligation as per Article 4

Article 4 entails a specific positive obligation on the Member States to penalise and prosecute effectively any act aimed at maintaining a person in a situation of slavery, servitude or forced or compulsory labour (Siliadin v. France, no. 73316/01, §§ 89 and 112, ECHR 2005-VII). In order to comply with this obligation, Member States are required to put in place a legislative and administrative framework to prevent and punish trafficking and to protect victims (see Rantsev, cited above, § 285).

Article 4 may, in certain circumstances, require a State to take operational measures to protect victims, or potential victims, of trafficking.

Court has considered it relevant that the Anti-Trafficking Convention calls on the Member States to adopt a range of measures to prevent trafficking and to protect the rights of victims. The preventive measures include measures to strengthen coordination at the national level between the various anti-trafficking bodies and to discourage the demand for all forms of exploitation of persons. Protection measures include facilitating the identification of victims by qualified persons and assisting victims in their physical, psychological and social recovery.

Summary of positive obligations under Article 4

(1) the duty to put in place a legislative and administrative framework to prohibit and punish trafficking;

(2) the duty, in certain circumstances, to take operational measures to protect victims, or potential victims, of trafficking; and

(3) a procedural obligation to investigate situations of potential trafficking.

“…prosecution of victims, or potential victims, of trafficking may, in certain circumstances, be at odds with the State’s duty to take operational measures to protect them where they are aware, or ought to be aware, of circumstances giving rise to a credible suspicion that an individual has been trafficked.”

In Court’s opinion, the duty to take operational measures under Article 4 of the Convention has two principal aims:

  • to protect the victim of trafficking from further harm; and
  • to facilitate his or her recovery.

In order for the prosecution of a victim or potential victim of trafficking to demonstrate respect for the freedoms guaranteed by Article 4, his or her early identification is of paramount importance.

Court acknowledged the fact that as children are particularly vulnerable, the measures applied by the State to protect them against acts of violence falling within the scope of Articles 3 and 8 should be effective and include both reasonable steps to prevent ill-treatment of which the authorities had, or ought to have had, knowledge, and effective deterrence against such serious breaches of personal integrity.

Since, first applicant was discovered by police at a cannabis factory during the execution of a drug warrant, the authorities should have been alert to the possibility that he – and any other young persons discovered there – could be a victim of trafficking. Nevertheless, despite there not being any apparent doubt that he was a minor, neither the police nor the CPS referred him to one of the United Kingdom’s Competent Authorities for an assessment. Instead, he was charged with being concerned in the production of a controlled drug.

Second applicant claimed that the door was locked from the outside and he believed the factory was guarded; that he was not paid for his work; and that he might be killed if he stopped working.

In Court’s view the State did not fulfil its duty under Article 4 of the Convention to take operational measures to protect the first and second applicant either initially, as a potential victim of trafficking and subsequently, as a person recognised by the Competent Authority to be the victim of trafficking.

Applicant’s also complained that they were denied a fair trial within the meaning of Article 6 of the Convention.

To assess Whether there has been a violation of Article 6 § 1 of the Convention, the Court must answer the following questions:

first of all, did the failure to assess whether the applicants were the victims of trafficking before they were charged and convicted of drugs-related offences raise any issue under Article 6 § 1 of the Convention;

secondly, did the applicants waive their rights under that Article by pleading guilty; and finally, were the proceedings as a whole fair?

Court expressed that although victims of trafficking are not immune from prosecution, an individual’s status as a victim of trafficking may affect whether there is sufficient evidence to prosecute and whether it is in the public interest to do so.

State cannot, therefore, rely on any failings by a legal representative or indeed by the failure of a defendant – especially a minor defendant – to tell the police or his legal representative that he was a victim of trafficking.

CPS 2009 guidance itself states, child victims of trafficking are a particularly vulnerable group who may not be aware that they have been trafficked, or who may be too afraid to disclose this information to the authorities Consequently, they cannot be required to self-identify or be penalised for failing to do so.

Did the applicants waive their rights under Article 6 of the Convention?

The applicants’ guilty pleas were undoubtedly “unequivocal” and as they were legally represented they were almost certainly made aware that there would be no examination of the merits of their cases if they pleaded guilty. However, in the absence of any assessment of whether they were trafficked and, if so, whether that fact could have any impact on their criminal liability, those pleas were not made “in full awareness of the facts”.

Court did not consider that the applicants waived their rights under Article 6 § 1 of the Convention.

Whether the fairness of the proceedings as a whole was prejudiced?

In respect of both applicants, the reasons given by the CPS for disagreeing with the Competent Authority were wholly inadequate. Insofar as any reasons were given, they were not consistent with the definition of trafficking contained in the Palermo Protocol and the Anti-Trafficking Convention.

Court did not consider that the appeal proceedings cured the defects in the proceedings which led to the applicant’s charging and eventual conviction.

Hence it was concluded that the proceedings as a whole could not be considered “fair”.

Conclusion

Court referred to its finding that there has been a violation of Articles 4 and 6 of the Convention on account of the failure of the respondent State to fulfil its positive obligations under Article 4 to take operational measures to protect the victims of trafficking.

The Court had no doubt that the applicants suffered distress on account of the criminal proceedings and faced certain obstacles on account of their criminal records. However, it must also bear in mind that the aforementioned violations were essentially procedural in nature and as such the Court has not had to consider the merits of the decisions to prosecute the applicants.

Therefore each of the applicants was granted a sum of EUR 25,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.[V.C.L & A.N. v. The United Kingdom, Applications Nos. 77587 of 12 and 74603 of 12, decided on 5-07-2021]


The first applicant, who had been granted legal aid, was represented by Ms Philippa Southwell of Birds Solicitors, a law firm based in London.

The second applicant was represented by the AIRE Centre, a legal charity based in London, and by Professor P. Chandran, a Barrister based in London at 1 Pump Court Chambers.

The Government were represented by their Agent, Mr J. Gaughan of the Foreign and Commonwealth Office.

Case BriefsInternational Courts

European Court of Human Rights (ECHR): In an interesting case regarding child trafficking the Fourth Section of ECHR had came up with a landmark ruling. The Bench, while acknowledging the right to protection of victims of trafficking ruled that,

“It is axiomatic that the prosecution of victims of trafficking would be injurious to their physical, psychological and social recovery and could potentially leave them vulnerable to being re-trafficked in future.”

 Facts and Findings

The instant case relates to two minor applicants, both of whom were convicted for criminal offences connected to their work as gardeners in cannabis factories. The Trial had been initiated against both the applicants and both of them, due to incompetent legal aid had pleaded guilty. The Crown Prosecution Service (CPS) persuaded to prosecute them even after being made aware by the United Kingdom Border Agency that there were reasonable grounds for believing that the first applicant had been trafficked. Similarly, the second applicant as well was recognised as victim of trafficking by the designated Competent Authority. The CPS while concluding that there was no credible evidence that the applicants had been trafficked, sentenced the first applicant to twenty months detention in a young offenders’ institution and eighteen-month detention and training order to the second applicant.

Similarly, the Court of Appeal opined that Article 26 of the Anti-Trafficking Convention was directed at sentencing decisions as opposed to prosecutorial decisions and could not, therefore, be interpreted as creating immunity for victims of trafficking who had become involved in criminal activities the court dismissed their appeal against conviction. However, the Appellate Court had reduced the sentence of the first applicant as a twelve-month custodial sentence and considering the young age of the second applicant his punishment was reduced as well to a four-month detention and training order. Being aggrieved by the conviction order the applicants reached the Supreme Court which had refused their applications.

Assessment

The Bench noted that the first applicant was discovered by police at a cannabis factory during the execution of a drug warrant, thus, the authorities should have been alert to the possibility that he – and any other young persons discovered there – could be a victim of trafficking. The CPS failed to consider that the relevant nexus had not been established between the trafficking and the criminal offence; rather, it repeatedly found that there was no clear evidence that the first applicant had been trafficked. The Court remarked,

“The prosecution of victims, or potential victims, of trafficking may, in certain circumstances, be at odds with the State’s duty to take operational measures to protect them where they are aware, or ought to be aware, of circumstances giving rise to a credible suspicion that an individual has been trafficked.”

Even though the first applicant was subsequently recognised by the Competent Authority as a victim of trafficking, the CPS, disagreed with that assessment without providing adequate reasons for its decision and the Court of Appeal, relying on the same inadequate reasons, twice found that the decision to prosecute him was justified.

Similarly, the competent authority had subsequently affirmed the possibility of the second applicant being a victim of trafficking at the time of his arrest. Observing that both the applicants were minor at the time of trafficking, the Bench stated,

“Child victims of trafficking are a particularly vulnerable group who may not be aware that they have been trafficked, or who may be too afraid to disclose this information to the authorities.”

 The State had a positive obligation to take operational measures to protect such victims; however, instead the criminal proceedings were allowed to proceed against them in the instant case.

Can Right to Fair Trial be Waived by Pleading Guilty?

On the plea of State that victims right to a fair trial was waived by pleading guilty, the Court was of the view that the victims had been deprived of a fair trial because the police had failed to undertake an investigation capable of providing them with exculpatory evidence, even though there was a credible suspicion that they had been trafficked; and the CPS’s assessment of the case was fundamentally flawed because it ignored the indicators of trafficking which were present.

It is true that neither the letter nor the spirit of Article 6 of the Convention prevents a person from waiving of his own free will the entitlement to the guarantees of a fair trial. However, such a waiver must be established in an unequivocal manner and it must not run counter to any important public interest.

Furthermore, given that trafficking threatens the human dignity and fundamental freedoms of its victims and is not compatible with a democratic society and the values expounded in the Convention, in the absence of any assessment regarding veracity of trafficking any waiver of rights by the applicants would run counter to the important public interest in combating trafficking and protecting its victims.

Whether the Trial was Prejudiced?

The Court opined that in respect of both applicants the reasons given by the CPS for disagreeing with the Competent Authority were wholly inadequate. Also, though the applicants invoked Article 4 of Anti Trafficking Convention the Court of Appeal did not consider their cases through the prism of the State’s positive obligations under that Article. The Bench expressed,

“Such an approach would in effect penalise victims of trafficking for not initially identifying themselves as such and allow the authorities to rely on their own failure to fulfil their duty under Article 4 of the Convention to take operational measures to protect them.”

Under Article 4 of the Convention, it was the State which was under a positive obligation to both to protect victims of trafficking and to investigate situations of potential trafficking and that positive obligation was triggered by the existence of circumstances giving rise to a credible suspicion that an individual has been trafficked and the State had blatantly failed to meet that obligation.

 The victims cannot be required to self-identify or be penalised for failing to do so.

Consequently, it had been held that there had been a violation of Articles 4 and 6 of the Anti-Trafficking Convention on account of the failure of the respondent State to fulfil its positive obligations under Article 4 to take operational measures to protect the victims of trafficking. Hence, both the victims were granted the sum of EUR 25,000 each in respect of non-pecuniary damage. Additionally, the cost of EUR 20,000 was also imposed on the state that was to be paid to the applicants.[V.C.L. and A.N. v. United Kingdom, Applications nos. 77587 of 12, decided on 16-02-2021]


Kamini Sharma, Editorial Assistant has reported this brief.

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

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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

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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

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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

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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

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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

Madhya Pradesh High Court: Rajendra Kumar Srivastava, J., quashed the charge under Section 370 IPC framed against the petitioner.

On receiving information about the act of Prostitution being carried on, police reached the place and found that the accused/petitioner was involved in the prostitution activities with another co-accused.

Accused/petitioner and other co-accused were arrested, FIR was lodged under Section 370 read with Section 34 of Penal Code, 1860 and Sections, 3, 4, 5, 6 of Immoral Trafficking (Prevention) Act, 1956.

Additional Sessions Judge framed the charge against the accused/petitioner under Section 370(2) of IPC.

Petitioners counsel submitted that the Court below committed gross error of law in framing charge against accused/petitioner.

As per the prosecution story, accused/petitioner was caught in a suspicion condition while doing prostitution.

Thus, as per the prosecution case itself present accused/petitioner was not involved in trafficking of person rather she has been subjected to the trafficking for the purpose enshrined under Section 370(1) of IPC. In such circumstance, no charge can be framed against the accused/petitioner under Section 370(2) of IPC.

Analysis and Decision

Section 370(1) of IPC provides exploitation of threats, using force or any other form of coercion, abduction or practising fraud or deception, abuse of power by inducement, 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.

Further the Court observed that, admittedly, accused/petitioner is a lady and she cannot be considered to be exploiting herself, so as to bring her within the ambit of Section 370.

In fact, she is the person who would be considered as being exploited under Section 370 of IPC.

Court relied on the Gujarat High Court Judgment Vinod v. State of Gujarat, 2017 SCCOnline Guj 446, wherein the Gujarat High Court had referred to clarification by Justice Verma Committee:

Members of the Committee wish to clarify that the thrust of their intention behind recommending the amendment to Section 370 was to protect women and children from being trafficked. The Committee has not intended to bring within the ambit of the amended Section 370 sex workers who practice of their own volition. It is also clarified that the recast Section 370 ought not to be interpreted to permit law-enforcement agencies to harass sex workers who undertake activities HC-NIC Page 14 of 24 Created On Sat May 06 01:34:48 IST 2017 of their own free will, and their clients. The Committee hopes that law enforcement agencies will enforce the amended Section 370, IPC, in letter and in spirit.

We request you to clarify that your intention was not to criminalize the lives of sex-workers but rather to criminalize only those who ‘exploit the prostitution of others’ i.e. traffickers in persons.

Thus, High Court on perusal of the above held that, charge under Section 370 of IPC has been erroneously framed against the accused/petitioner since she is herself an exploited person as per Section 370 of IPC.

Hence, accused/petitioner be discharged forthwith. [X v. State of M.P., 2020 SCC OnLine MP 1079 , decided on 20-05-2020]

Cabinet DecisionsLegislation Updates

The Union Cabinet has approved the Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018 for introduction in Parliament. The Bill broadly has the following features:
  1. Addresses the issue of trafficking from the point of view of prevention, rescue and rehabilitation.
  2. Aggravated forms of trafficking, which includes traffickingtrafficking for the purpose of forced labour, begging, trafficking by administering chemical substance or hormones on a personfor the purpose of early sexual maturity, trafficking of a woman or child for the purpose of marriage or under the pretext of marriage or after marriage etc.
  3. Punishment for promoting or facilitating trafficking of person which includesproducing, printing, issuing or distributing unissued, tampered or fake certificates, registration or stickers as proof of compliance with Government requirements; orcommits fraud for procuring or facilitating the acquisition of clearances and necessary documents from Government agencies.
  4. The confidentiality of victims/witnesses and complainants by not disclosing their identity. Further the confidentiality of the victims is maintained by recording their statement through video conferencing (this also helps in trans-border and inter-State crimes).
  5. Time bound trial and repatriation of the victims – within a period of one year from taking into cognizance.
  6. Immediate protection of rescued victims and their rehabilitation. The Victims are entitled to interim relief immediately within 30 days to address their physical, mental trauma etc. and further appropriate relief within 60 days from the date of filing of charge sheet.
  7. Rehabilitation of the victim which is not contingent upon criminal proceedings being initiated against the accused or the outcome thereof.
  8. Rehabilitation Fund created for the first time. To be used for the physical, psychological and social well-being of the victim including education, skill development, health care/psychological support, legal aid, safe accommodation,etc.
  9. Designated courts in each district for the speedy trial of the cases.
  10. The Bill creates dedicated institutional mechanisms at District, State and CentralLevel. These will be responsible for prevention, protection, investigation and rehabilitation work related to trafficking.  National Investigation Agency (NIA) will perform the tasks of Anti-Trafficking Bureau at the national level present under the MHA.
  11. Punishment ranges from rigorous minimum 10 years to life and fine not less than Rs. 1 lakh.
  12. In order to break the organized nexus, both at the national and international level, the Bill provides for the attachment and forfeiture of property and also theproceeds for crime.
  13. The Bill comprehensively addresses the transnational nature of the crime. The National Anti-Trafficking Bureau will perform the functions of international coordination with authorities in foreign countries and international organizations; international assistance in investigation; facilitate inter-State and trans-border transfer of evidence and materials, witnesses and others for expeditingprosecution; facilitate inter-state and international video conferencing in judicial proceedings etc.

Background

Trafficking in human beings is the third largest organised crime violating basic human rights. There is no specific law so far to deal with this crime. Accordingly, the Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018 has been prepared. The Bill addresses one of the most pervasive yet invisible crimes affecting the most vulnerable persons especially women and children.

The new law will make India a leader among South Asian countries to combat trafficking. Trafficking is a global concern also affecting a number of South Asian nations. Amongst them, India is now a pioneer in formulating a comprehensive legislation. UNODC and SAARC nations are looking forward to India to take lead by enacting this law.

The Bill has been prepared in consultation with line Ministries, Departments, State Governments, NGOs and domain experts. A large number of suggestions received by the Ministry of WCD in hundreds of petitions have been incorporated in the Bill.  The Draft Bill discussed in regional consultations held in Delhi, Kolkata, Chennai and Bombay with various stakeholders including over 60 NGOs. The Bill was examined and discussed by Group of Ministers also.

Cabinet