Socio-Legal Dimensions of Prostitution and Trafficking
This article deals with forced prostitution and trafficking with special reference to India. The article further focuses on the exploitation and abuse of children and women which sadly exist in every civilization on the planet from time immemorial. Quite fascinating that the 21st century, one of the most revolutionized centuries in terms of technology, human rights, ideological enlightenment… Read More »
This article deals with forced prostitution and trafficking with special reference to India. The article further focuses on the exploitation and abuse of children and women which sadly exist in every civilization on the planet from time immemorial.
Quite fascinating that the 21st century, one of the most revolutionized centuries in terms of technology, human rights, ideological enlightenment and many more has to face the basic challenge of slavery, indeed with a novel twist in the form of ‘human trafficking’. In the modern world, trafficking has become an organized crime spreading its tendons to all possible levels of injustice.
This article deals with human trafficking and forced prostitution with special reference to India. The fake glorification of women in India as goddesses in a long-suppressed and patriarchal society, in reality, are sold like commodities in the black markets and treated like mere prisoner under inhumane conditions. Human trafficking is the gross violation of an individual’s right to liberty, security and movement and is often accompanied by violence and detrimental treatment. In an extensive sense, Human Trafficking is re-imagined and new jargons are added to the understanding of this issue in the legal sense.
I. 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”[1] In simple terms it could be understood as the brutal trade of human beings for a vast multitude of activities especially women and children for sexual exploitation.
This may include providing a spouse through constrained marriages, kidnapping potential individuals from whom organs can be harvested, surrogates etc. The victims can be of any age, nationality, religion or race who may have fallen into the trap of traffickers who often use various forms of manipulation, violence, false promises etc.[2]
Lessening the self-worth of an individual, compelling that person to put themselves on display and act like a money-making machine for the predators is the core of human trafficking.
Tracing back to the stories of various victims rescued, we find the common denominator to be poverty. The predators make maximum leverage out of the scenario to lure people into trafficking. Many times they are promised a better life but blinded by the harsh reality and left to be abused.
The common misconception in pondered the term ‘Human Trafficking’, which goes about as a typical conviction in the society is sex trafficking. This nearsighted conviction reaches a determination in the psyche of individuals which is prohibitive in nature thereby weakening the comprehension of this exhaustive term.
Human trafficking is commonly seen in the form of Forced Labour, Sex trafficking and Debt Bondage.[3]
Various legal provisions can be found in the IPC 1860, CrPC, constitution, Immoral Traffic (Prevention) Act 1956, Bonded Labour System (Abolition) Act, 1976, Child and Adolescent Labour (Prohibition and Regulation) Act, 1986, Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, Transplantation of Human Organs and Tissues Act, 1994 and Protection of Children from Sexual Offences Act, 2012 to prevent and punish the various forms of trafficking in humans.
II. Delving into History
Human trafficking is not a novel phenomenon that outburst in the near past but is as old as human civilisation. Slaves were considered as property which the master can use according to their will. Later with the development of human rights, it was agreed upon that the basic rights of an individual should outweigh the lucrative pleasures of the masters.
Human trade has shifted from the traditional markets to black markets and unfortunately very little has changed so far.
The earliest form of trafficking can be traced back to Africa where the indigenous people were sold in the markets to the ‘white masters’. The slaves were to satisfy the sexual needs of the master as well as perform bonded labour with little or no income.
The term human trafficking is profoundly challenged and uncertain and there is no obvious comprehension of dealing. Different theoretical methodologies are being utilized to characterize and differentiate amongst prostitution, migrant crisis wage payment issues etc.[4]
Around 1900, we see that women from Europe were trafficked to Middle Eastern and Arab countries as prostitutes or concubines. Around this same time, the definition of human traffic underwent a major change. Initially, the definition of the traffic of women for prostitution necessarily required them to cross international borders but by 1910 this essentiality was removed.[5]
In the late 19th century, migration and trafficking were given separate stances and various international laws were put forth by the United Nations to safeguard the refugees and trace the traffickers.
Failure of the Nations
Sitting inside the four walls of our euphoria we often fail to think if the domestic helper at our homes, women at the night clubs or beggars on the streets may fall prey to trafficking. The harsh reality is that the above-said statement turns out to be true most of the time. The International Labor Organization estimates that there are 40.3 million victims of human trafficking globally of which 20% are children.[6] It’s also heart-wrenching to note that the real estimates are far away from the official estimates.
To worsen the scenario, most global governments are in absolute ignorance, as stated by Antonio Maria Costa executive director UNODC, “governments are still in denial”. [7] They are not willing to accept that such conditions are still persistent and there is neglect in the recording of such cases. As the number of convictions for human trafficking is increasing, two out of every 5 countries had not recorded a single case for conviction.
When it comes to war-torn countries like Syria, Palestine, Israel etc disappearances of women and children occur on a daily basis as the weak enforcement provides a fertile ground for the predators.
The culprits also exploit the state of refugees and show them a course to the place of refuge and safe haven. Ironically, they are sent to rot holes and abused. The emergence of the refugee crisis paved way for the dealers to go after them and cross-boundary streams give them the easiest ways to conduct the human trade.
It has also been seen that the armed groups assert their territorial dominance by inciting fear in the civilians of trafficking in order to keep them under control. The armed combatants also recruit the children in their army in order to increase the potential strength of the army.[8] In the status quo, the Middle East and Rohingya Muslim crisis have led to the refugees falling prey to traffickers.[9] The key concern here is that most victims of trafficking are not able to identify themselves as a victim and further not able to avail the protection provided.
III. Prostitution
The UNODC states that 79% of the victims of human trafficking are women and 95% of them end up in prostitution. Prostitution is one of the most profit-making illegal trade. Women and children are often forced into prostitution due to their grinding living conditions.
The traders brainwash or manipulate parents or women in the name of fake adoptions and marriages.[10] Once they are trapped it is almost impossible for them to escape this deep-rooted network. Sex taboo and the Indian patriarchal society can also be cited as the factors which provide a breeding ground for this trade.
Other contributing factors can be the status of domestic violence against women in their households, lack of awareness of their legal rights and remedies, the prevalence of evil traditional and religious practices and many more.
In India, prostitution can be traced back to British Era when European prostitutes were brought to the country to reduce homosexual practices.[11] Women from Bangladesh, Pakistan, Nepal, Sri Lanka are trafficked in huge numbers to India and forced into prostitution. Subsequently, Indian women themselves are forced into prostitution both domestically and internationally. They are vulnerable to both physical and mental abuse and also to fatal sexually transmitted diseases like HIV-AIDS.
IV. Judicial involvement:
In Geeta Kancha Tamang v. State of Maharashtra [12], the court denied the release of the convict on mercy ground who had served imprisonment of 14 months then. The court observed that the brutal crime of human trafficking is prohibited under Article 23 of the Indian constitution and it was the fundamental right of every citizen to not be trafficked.
In Budhadev Karmaskar v. State of West Bengal [13], the court pointed out on the importance of rehabilitation of women who were forced into prostitution and instructed the central and state governments to ensure the same through Social Welfare Boards across the nation and to provide vocational and technical training. The court further stated that a woman is indulged in prostitution not for pleasure but of poverty.
V. Legal framework
Human trafficking has to be combatted at both national and international levels for which strict laws and law enforcement is required. There are various legal provisions and statutes that are incorporated to provide safeguards to the victims.
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Constitution of India
Article 23 prohibits “traffic in human beings and beggar and other similar forms of forced labour”,[14] Article 39-A directs that the legal system should ensure that opportunities to attain justice are not denied to any citizen because of economic or other disabilities[15], Article 51 talks of our fundamental duty to renounce any practise that’s derogatory to the dignity of women.[16]
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Immoral Traffic (Prevention) Act, 1956
Section 3 provides punishment for any person who keeps a brothel or provides a place for a brothel, section 4 provides for punishment to any person over 18 years of age, living on the earnings of prostitution of another person, section 5 provides for punishment to any person who has procured a person for prostitution. This act looks into the various aspects and possibilities of prostitution for which punishments are prescribed.
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Indian penal code 1860
Kidnapping and abduction being the major causes of trafficking are covered under section 360-366 of IPC, Section 366B specifically talks about the importation of girls from a foreign country or J&K[17]. this also provides for punishment of up to 10 years or fine. Section 372 and 373 of IPC governs the offence of selling and buying minor for the purpose of prostitution etc., respectively.
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Criminal Procedure Code, 1973
Duty regarding giving remuneration to victims is divided between the Central Government and individual States. This is to a great extent the consequence of Section 357 and Section 357-A CrPC. At the point when the actual discipline mulls over a 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.[18]
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Protection of Children from Sexual Offences Act, 2012
It has been drafted to fortify the legitimate arrangements for the security of children from sexual maltreatment and abuse. Interestingly, an uncommon law has been passed to address the issue of sexual offenses against youngsters. Sexual offenses are right now canvassed under various areas in the Indian Penal Code. Nonetheless, Penal Code, 1860 doesn’t accommodate a wide range of sexual offences against kids and, all the more critically, doesn’t recognize adult and child victims.[19]
VI. Should prostitution be legalized?
This never-ending debate has to be answered as it’s the need of the hour. In my opinion, prostitution should be legalized in India as it has proven to be an inevitable trade.
Legalization will provide an organized framework within which prostitution can be conducted and moreover the sex workers can be assured with rights and legal protection. After legalizing prostitution in 2003, New Zealand found a huge decrease in human trafficking cases.[20]
Moreover, legalization made it easier for sex workers to report abuse and for police to prosecute sex crimes. The vital advantage of decriminalization is a tremendous improvement in the connection among police and sex labourers, to the point that sex labourers become key data sources in endeavours to uncover illegal exploitation.
Criminalization forces prostitution into the underworld whereas legalization would bring it into the open. Legitimization of prostitution will advance the wellbeing and health of the prostitutes as they can have simple admittance to clinics and hospitals which they don’t have when it is illicit.
Perceiving prostitution as a financial movement, the prostitutes can be provided with work permits, thereby controlling the sex industry like any other.
[1] United Nations Office on Drugs and Crime, Human Trafficking, Available Here
[2] Devika Sharma, World Day Against Trafficking in Persons 2020 | Iniquitous Crime to unabating Modern-day Slavery, World Day Against Trafficking in Persons 2020 | Iniquitous Crime to unabating Modern-day Slavery | SCC Blog (scconline.com)
[3] Ibid
[4] Vineet Tayal, Yasha Goyal, Prostitution and Trafficking in 21st Century, Available Here
[5] Ibid
[6] International Labour Organisation, Forced labour, modern slavery and human trafficking, Forced labour, modern slavery and human trafficking (Forced labour, modern slavery and human trafficking) (ilo.org)
[7] United Nations Office on Drugs and Crime, UNODC report on human trafficking exposes modern form of slavery, Global Report on Trafficking in Persons (unodc.org)
[8] UNICEF, Children in War, Children as soldiers (unicef.org)
[9] Ibid
[10] Abdul Basit Naik, Impacts, Causes and Consequences of Women Trafficking in India from Human Rights Perspective, Impacts, Causes and Consequences of Women Trafficking in India from Human Rights Perspective:: Science Publishing Group
[11] Dr. SR Sarode, Historical Study of Prostitution trade in India: Past and Present, Available Here
[12] (1997) 8 SCC
[13] (2011) 11 SCC 538
[14] Article 23, The Constitution of India.
[15] Article 39A , The Constitution of India.
[16] Article 51, The Constitution of India.
[17] Ministry of External Affair, Human Trafficking, Human Trafficking (mea.gov.in)
[18] Arunima Bose, Human Trafficking, https://www.scconline.com/blog/post/2020/09/20/human-trafficking/
[19] Kumkum Agarwal, Article on Crime against Women in India: A Social Menace, Available Here
[20] Britanica ProCon, Should prostitution be legalised?, Should Prostitution Be Legal? – Prostitution – ProCon.org
