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While it is true that slavery is illegal almost everywhere on earth, the fact is there are more slaves today than there ever were…” – Robert Alan Silverstein

Introduction to Human Trafficking:

Trafficking of human beings is a global phenomenon. It is third largest form of organized crime. According to Global Survey Index, 2014, India is home to 14 million victims of human trafficking. A separate definition of child trafficking is provided by the UN Convention against Transnational Organised Crimes, which states that ‘child trafficking is the recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation.’

Child is defined to be anyone below the age of 18 years as per UN Convention on Rights of child. With respect to human trafficking, according to UN Trafficking Protocol, ‘a person is guilty of the crime of human trafficking if they satisfy three components: (1) an act (e.g., transportation, or receipt of persons), (2) by a specified means (e.g., threat or use of force or other forms of 46 coercion, abduction, fraud, etc.), (3) resulting in “exploitation.’ India officially ratified United Nations Convention Against Transnational Organized Crime (UNTOC), along with its three protocols including UN Trafficking Protocol on May 5, 2011.

Therefore, although India has not incorporated the protocol in its national legislation, it needs to adhere to its obligation under the treaty in accordance to Article 51 of the Indian Constitution. History of Laws on Human Trafficking in India: There are more than 20 provisions in the Indian Penal Code, 1860 that deal with human trafficking. India had also passed the Immoral Traffic Prevention Act, 1956, which is the main tool for prevention of trafficking in India.

The Act imposes penalty for immoral trafficking, persons who live off the earnings of a woman, provides rehabilitation of sex workers but does not impose punishment on commercial sex workers. Basically, it only criminalises with the objective of prostitution and ignores all other aspects of trafficking. Subsequently, Bonded Labour System (Abolition) Act, 1976 was passed. It defines bonded labour as service arising out of loan/debt/advance.

The work is commenced for repayment of such loan, which means the labourer is not paid anything. His sustenance or livelihood depends on the employer who captures him. If the debtor himself is unable to pay the loan, then his children are forced into it. There is no means of escape as these people are unaware and uneducated and they believe that repayment of loan is their sole responsibility. However, the Act fails to recognize that persons can be trafficked for the purpose of bonded labour.

There is also Transplantation of Human Organs Act, 1994. Further, in 2003, the Bomay High Court in Prerana v. State of Maharashtra, [(2003) 2 BOMLR 562] laid down that cases relating sex trafficking should be off expeditiously. Trial court must take the victim’s statement in one month and complete the trial within six months. Moreover, in September 2006, the Indian Government created an anti-trafficking law enforcement ‘nodal cell.’ It consisted of two officials that accumulated and analysed data relating to human trafficking.

In 2007, three state governments created anti trafficking police units. Also, in the same year, the Central Government banned the employment of child labour for domestic work.

Efforts made since 2013 to tackle Human Trafficking:

The snag in all these laws is that, they do not define what ‘human trafficking’ is. Therefore, there is no uniform guideline or rules laid down that prevents or punishes trafficking in human beings.

Moreover, the punishments are not rigorous enough with imprisonment extending upto just 3 years. In pursuance of its legal conviction, the government passed Criminal (Amendment) Act, 2013. The Act defined human trafficking, which is more or less a facsimile of the definition provided in the UN Trafficking Protocol. However, there are certain departures from the UN definition, the most notable departure being the exclusion of forced labour from the definition of human trafficking. The ordinance passed by the President did mention forced labour in its definition, but on final formulation, it was excluded from the Act for some reason. It is accounted that forced labour trafficking would fall under ‘physical exploitation’ but it is abstruse as physical exploitation itself is not defined in the Amendment Act or the UN Protocol.

Consequently, Section 370A of the Indian Penal Code lays down punishment for persons who knowingly engage a trafficked person in sexual exploitation with imprisonment for 3-5 years and fine. However, there is no such punishment for persons who engage such victims for physical exploitation. Majority of the people are victims of physical exploitation or bonded labour trafficking. Therefore, by including punishment for physical exploitation, Section 370A fails to protect majority of the trafficking victims.

Additionally, the fact that the issue of trafficking is covered under so many statutes, fosters confusion amongst the law enforcement sector that is already swamped with various other statutes. This inexorably leads to mercurial implementation as officials and people have conflicting knowledge on the laws regarding human trafficking. Moreover, the Ministry of Home Affairs in 2013 established Anti-Human Trafficking Units (AHTU) to collaborate efforts between law enforcement and rehabilitation.

However, unfortunately these units have been criticized to be ineffective. Even though, India has made considerable progress in the field of human trafficking, it has a long way to go before to make it more efficient and implement effectively. India has also entered a joint statement with Bangladesh that the two countries would co-operate in eliminating human trafficking. However, they have not entered into a final agreement.


Even though there have been efforts to develop laws that are more stream- lined and methodical, there is still desideratum for measures to ensure safety, compensation and rehabilitation of trafficking victims. Moreover, cross-border trafficking victims face two-fold hurdles, as their mere presence in India is illegal.

Therefore, it is salient to have effective policy implementation. Frequent raids could help curb the instances to an extent. One of the most important course of actions that the Government needs to take is to sensitize people, students, teachers, government officials, police officers, etc about trafficking. Awareness is the most indispensable element in thwarting trafficking. Besides, instead of providing such minimal compensation to the victims, along with increasing the amount, there is a desperate need for having rehabilitation programmes which, consists of educating and training them so they can earn a livelihood on their own and lead a respectable life.

Non-Governmental Organisations can create awareness about the menace of trafficking through various means to people from the grass-root level. They can take the help of media for garnering attention. They can engage with lawyers, provide protection to witness and extend pro-bono networks in cases like these. Human Trafficking is a socio-economic problem, that affects the society at large, puts the lives of innocent civilians at peril. Therefore, legal mechanism has to be clear and unambiguous and there needs to be a combined effort from both government and society to tackle the ominousness of human trafficking.

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Category Constitutional Law, Other Articles by - Prerana