By Rajul Jain , Legal Research Officer Shakti Vahini
The provisions under the Indian Penal Code, 1860 which can be read in relation to the crime of trafficking are scarcely used and have so far lacked teeth. While trafficking in itself is often not seen as a crime, the efforts of the law enforcement agencies have also remained half hearted. It can therefore be seen that the menace of trafficking still manifests the society with full vigour. The much talked about and credible Justice Verma Committee Report deals with trafficking in detail and gave some comprehensive solutions. The expert debate, demands of the common man and the executive will, led to the passing of the Criminal Law (Amendment) Ordinance, 2013.
The ordinance deals with the issue of trafficking among other things and substitutes section 370 of the IPC, also inserts a new section 370A. The new sections are as below:
‘370. (1) Whoever, for the purpose of exploitation, (a) recruits, (b) transports, (c) harbours, (d) transfers, or (e) receives, a person or persons, by––
First.–– using threats, or
Secondly.–– using force, or any other form of coercion, or
Thirdly.–– by abduction, or
Fourthly.–– by practising fraud, or deception, or
Fifthly.–– by abuse of power, or
Sixthly.–– by inducement, including the giving or receiving of payments or benefits, in order to achieve the consent of any person having control over the person recruited, transported, harboured, transferred or received, commits the offence of trafficking.
Explanation 1.–– The expression “exploitation” shall include prostitution or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude, or the forced removal of organs.
Explanation 2.–– The consent of the victim is immaterial in a determination of the offence of trafficking.
(2) Whoever commits the offence of trafficking shall be punished with rigorous imprisonment for a term which shall not be less than seven years, but which may extend to ten years, and shall also be liable to fine.
(3) Where the offence involves the trafficking of more than one person, it shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life, and shall also be liable to fine.
(4) Where the offence involves the trafficking of a minor, it shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life.
(5) Where the offence involves the trafficking of more than one minor at the same time, it shall be punishable with rigorous imprisonment for a term which shall not be less than fourteen years but which may extend to imprisonment for life.
(6) When a public servant including police officer is involved in the trafficking of a minor then such public servant shall be punished with imprisonment for life, which shall mean the remainder of that person’s natural life.
(7) If a person is convicted of the offence of trafficking of minors, on more than one occasion, then such person shall be punished with imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life.’
A bare reading of the new section leads us to the following conclusions:
1. While the old section 370 of IPC dealt with only buying or disposing of any person as a slave the new section will take in its purview buying or disposing of any person for various kinds of exploitation including slavery. This provision includes organ trade.
2. As the explanation further clarifies “exploitation” would also include prostitution. This is in addition to the ITP Act, 1956. The intention of the legislature in including “other forms of sexual exploitation” and “forced labour or services” can be read to address situations where the trafficked persons are used for pornographic purposes or services like massage parlours.
3. The new section also ensures that persons involved at each and every stage of trafficking chain are brought within the criminal justice system.
4. Also by specifically including that if a person is brought with his/her consent, where such consent is obtained through force, coercion, fraud, deception or under abuse of power, the same will amount to trafficking, the law has been substantially strengthened.
This will cover all situations where girls who happen to be major are duped with promises of marriage and willingly accompany the traffickers who exploit them in various ways. While earlier no specific offence was made out for the mere bringing of the girl in question now that too is criminalized. It has also been specifically added in the provision that consent of the victim is immaterial for the determination of the offence.
5. The new section also differentiates the instances of trafficking major persons from minor persons. This differentiation is brought about by providing separate penalty for each with higher minimum sentence for trafficking minor persons.
6. While earlier no minimum imprisonment term was provided, now, the minimum (rigorous) imprisonment term is fixed.
7. In addition the section also provides for enhanced punishment for repeated offender as well as where the offender traffics more than one person at the same time.
8. By providing that trafficking in minor persons on a repeated conviction will attract imprisonment for life (meaning the remaining natural life) the law has been substantially changed. This will surely act as a big deterrent.
9. Involvement of a public servant including a police officer shall entitle him to life imprisonment which shall mean the remaining natural life.
‘370A. (1) Whoever, despite knowing, or having reason to believe that a child has been trafficked, employs such child in any form of labour, shall be punished with rigorous imprisonment for a term which shall not be less than five years but w h i c h may extend to seven years, and with fine.
(2) Whoever, despite knowing or having reason to believe that an adult has been trafficked, employs such adult for labour, shall be punished with rigorous imprisonment for a term which shall not be less than three years but which may extend to five years, and shall also be liable to fine.’
Addition of the section 370 A further adds strength to trafficking related law by criminalizing employment of a trafficked (major/minor) person. A person who has even reason to believe or apprehension that the minor/major person employed by them has been trafficked will make them criminally liable. This places a huge responsibility on the employers who were till now, let off easily under the not so strict provisions of the child labour laws and juvenile related laws.
Here also a higher minimum prison term is prescribed where a minor person is involved. Also important is the fact that irrespective of age of the person employed, simply employing a trafficked person is an offence.
This provision will go a long way in ensuring that people verify the antecedents of the placement agencies as also get the police verification of the persons employed. This will also aide in curbing the huge demand for labour who are victims of unsafe migration.