Author: Manya Sharma  

ABSTRACT  

Human trafficking is the act of recruiting, transporting, transferring, harboring, or  receiving individuals through force, fraud, or coercion for the purpose of exploiting them for  profit. This paper seeks to examine whether the existing legal and judicial frameworks are  sufficient to combat human trafficking in India. The first section of the paper highlights and  analyses the evolution and scope of Article 23 using case laws. The second section of the  paper focuses on analyzing the major causes of trafficking. The third and the final section of  the paper critically analyzes the current legal and judicial frameworks including ITPA  (Immoral Trafficking Protection Act), POCSO Act and the practice of “continuing  mandamus”.  

ROLE OF ARTICLE 23 

Article 23 of the Indian Constitution prohibits traffic in human beings and begar (forced labor  without payment) and other such forms of forced labor. It is a fundamental right which is  enforceable against state and private individuals and in case this right is violated, the act is  punishable by law. The scope of this article extends to human trafficking, bonded labor,  sexual exploitation and forced domestic or industrial labor. In Sanjit Roy vs. State of  Rajasthan, the Supreme Court held that paying less than minimum wage constitutes forced  labor and hence violates Article 23. In Deena vs. Union of India, prisoners were made to  work without pay and the court held this as forced labor and stated that it is unconstitutional.  In this case, Article 23 was expanded to include economic compulsion and not solely physical  force.  

In the early constitutional era, Article 23 had only existed for forced labor cases and failed to  incorporate trafficking in the modern sense. Courts focused only on beggar, bonded labor and  economic exploitation. Human trafficking as organized movement and exploitation was not  fully recognized. This had happened because India was newly independent and was grappling  with major issues including poverty, feudal labor systems and bonded labor. Hence, in the  early era, the focus was narrow and only included labor exploitation. The legal response was  heavily focused on welfare and labor protection.  

In phase 2, that is, 1986- Present (Modern Era), trafficking began to get recognized as a major  social crime. Now, it is seen not just as a labor rights issue but an actual violation of human  rights, not just as economic coercion, but as an organized criminal activity, not just as  domestic exploitation but as cross- border, interstate networks. Certain major laws supporting  Article 23 include IPC Sections 370, 370A, the ITPA (Immoral Traffic Prevention Act,  amended in 1986), Criminal Law Amendment Act, 2013, POCSO Act, 2012 and Bonded  Labor System (Abolition) Act. The main purpose of IPC Sections 370, 370A is to prevent  trafficking, the ITPA aims to prevent sexual exploitation, POCSO aims to protect children,  the Bonded Labor act aims to end bonded labor and the criminal law amendment act aims to  strengthen definitions. Altogether, the major objectives of these laws include punishing the 

offenders, deterring crime, rescuing victims, providing rehabilitation and preventing  exploitation.  

SOCIO- ECONOMIC CAUSES OF TRAFFICKING  

Despite these legislations, the trafficking industry is not deterred from flourishing. The causes  include deeper structural, social, economic and global factors. The first major factor is  corruption. This includes political leaders, officials and law enforcement sometimes being  bribed by traffickers and complicit in trafficking networks. This implies that laws remain only  on paper, victims remain unprotected and invalidated and criminal networks continue  operating safely, thereby defeating the purpose of legislation. The core issue is not the  legislation, rather, it is the improper and inadequate implementation of that legislation. The  second major factor is societal exclusion. It is important to note that many victims belong to  marginalized caste groups and other marginalized communities. Caste hierarchy, moreover, in  India, has been historically persistent in rural India and is deeply characterized by  untouchability, humiliation and social alienation. These individuals who feel excluded aim to  migrate for better life and strive to attain financial security and stability and increase in  wealth through better job opportunities, thereby, becoming easy targets for traffickers.  

The third major factor is gender discrimination. India’s history is deeply rooted in a  patriarchal structure which includes a preference for male children and moreover, our  country, continues to have a widespread prevalence of dowry culture. Hence, girls are seen as  a financial burden on families due to this patriarchal dowry culture. It is important to note  that in trafficking is not just flourishing under the guise of secure employment but also under  the guise of marriages. Parents are deceived into giving daughters away and hence, this  promotes the culture of fake marriages. Nowadays, potential traffickers operating through  tacit criminal networks pose as grooms and deceive the girl’s parents. In rural areas, poverty  paints a grimmer and a worse picture. In villages, some families are forced by poverty to sell  their daughters. The debt trap and the already ingrained patriarchal mindset pushes these  families to take this cruel and harsh step and thereby, these criminal networks continue to  operate safely and the culture of trafficking continues to flourish.  

The fourth major factor is manipulation of children. People believe that children can be easily  deceived, controlled and manipulated. Hence, children are then forced into tobacco industry,  spinning, weaving, dyeing, carpet and rug industry, hotels, domestic labor in harsh conditions  and sex trade. The major impact of this for children include loss of childhood, physical  exhaustion, psychological trauma and stunted development. The fifth major factor is  preference for foreign victims. Generally, migrants from neighboring countries including  Nepal, Bangladesh, etc. are targeted. Traffickers and tacit criminal networks view these  migrants as easy targets due to the lack of local support and their illegal status makes  reporting extremely difficult. Major cases include foreign women in sex trade, several  Bangladeshi women as domestic help at low wage rates and many wealthy foreigners seeking  young brides and enslaved girls.  

A CRITICAL ANALYSIS OF LEGAL AND JUDICIAL FRAMEWORKS  (a) ITPA (IMMORAL TRAFFIC PREVENTION ACT)  

The ITPA focuses on commercial sexual exploitation, brothel-based prostitution, punishment  of those who facilitate prostitution and rescue and rehabilitation measures. However, it does 

not comprehensively address labor trafficking, organ trafficking, domestic servitude and other  modern forms of human trafficking, hence, its scope remains narrow and sex-trade centric.  The ITPA does not include a clear definition of trafficking. Therefore, although, it is a special  anti-trafficking law, it does not define trafficking and focuses only on prostitution related  offences. Hence, it leads to transporters, recruiters, shelter providers escaping liability solely  because no brothel is directly proved. Section 2(a) defines brothel as any place where two or  more prostitutes carry on prostitution for the benefit of another person. In Sushila vs. State of  Tamil Nadu, a single act of prostitution was held to not amount to brothel. In re: John, to  qualify as brothel, the court held that prostitution must be for the benefit of another person,  not the benefit of the woman herself.  

This definition is too narrow and also outdated in our contemporary society. Modern places  of exploitation also include massage parlors, hotels, lodges, private apartments and these  places may not clearly fall within definition. Moreover, there is a potential that this wording  may criminalize voluntary adult sex workers working together, as it assumes benefit of  another. Moreover, the act does not explicitly criminalize prostitution per se. But it  criminalizes surrounding activities, thereby, making it indirectly illegal. Section 4 punishes  any person who lives wholly or partly on the earnings of prostitution of another. The intended  targets of this section are pimps, agents, brothel managers and escort service operators; however, the major deficiency exists because there is no exception for children, elderly  parents and legal dependents. Thus, there is a potential risk that a prostitute supporting her  family could lead to criminal liability for her own family, including her children and parents.  Section 7 (1A) prescribes higher punishment if minor is involved. However, this section only  focuses on location, not on child protection mechanisms, trauma care and long-term  rehabilitation. Although minors are mentioned, however, the act lacks detailed specific  safeguards for children, a comprehensive approach centered on victims and also the  provisions do not align with modern child protection frameworks.  

(b) IMPLEMENTATION CHALLENGES WITH RESPECT TO POCSO ACT  

One of the most serious challenges in the implementation of POCSO is underreporting of  offences due to social stigma that is attached to sexual crimes, fear of retaliation by the  offender, lack of trust in police and courts. Families, moreover, also avoid reporting cases  due to shame, honor concerns and community pressure. Hence, due to this, crimes remain  hidden, offenders escape liability and the cycle of abuse continues. Due to social stigma,  many victims and families face ostracism, victim-blaming and social isolation. This  stigma further leads to depression, anxiety and trauma, hence, this discourages children  from speaking up. Lack of awareness is another major challenge in POCSO  implementation. Many children and guardians do not know about the POCSO act and are  also unaware of legal rights. They have a poor understanding of what constitutes sexual  abuse and online abuse and grooming.  

Proper evidence collection, preservation of samples and trained forensic experts is  required for effective prosecution. However, these processes remain improper due to lack  of infrastructure in rural areas, delay in medical examination, poor chain of custody and  hence, lack of evidence or weak evidence leads to low conviction rates. Moreover,  victims require psychological counselling, medical care, legal assistance and  rehabilitation. However, due to shortage of trained child counsellors, limited child-

friendly services, lack of victim support lawyers and week long-term care systems, these  support services remain inadequate.  

(c) ROLE OF “CONTINUING MANDAMUS”  

The concept of continuing mandamus can be understood as a judicial technique where  court retains jurisdiction, issues periodic directions, requires status reports and also  ensures and monitors implementation until compliance. Hence, judiciary here, functions  like a long running supervision mechanism. Since bonded labor involves administrative  neglect, deep rooted socio-economic structures and weak enforcement, this concept can  and must be implemented in cases involving bonded labor. In Neerja Chaudhary vs. State  of M.P.(1984), the court held that identifying and freeing laborers is only the first step. In  addition to this, states must ensure proper rehabilitation, social reintegration, protection  from re-bondage and periodic reporting to the court. This case also expanded the scope of  Article 21, shifted focus to include not just abolition of bondage but also restoration of  human life. Moreover, this case contributed towards making rehabilitation a legal  obligation.  

In Bandhua Mukti Morcha vs. Union of India, the PIL became a governance blueprint.  The court in this case directed that surveys must be conducted to identify bonded  laborers, rehabilitation registers must be maintained and vigilance committees must be  established. The court directed that it is vital to ensure medical aid, educational facilities  and economic rehabilitation. This case become a turning point because it helped to create  an accountability framework and also forced states to move from denial to  acknowledgement. In many states including Tamil Nadu, Karnataka, Odisha, state level  monitoring committees are in place and help to oversee rehabilitation. Periodic status  reports are now sent which help in ensuring transparency.  

In practice, functioning of continuing mandamus involved filing of PIL, the court then  issues interim orders, the government then files compliance report, the court finds gaps,  further directions are issued and case is kept pending. Hence, this way the file never  closes until the system works and behaves. Continuing mandamus helps to break the  inertia of the administration, give voice to marginalized laborers, converting rights into  enforceable duties, ensure data collection and periodic surveys and keeps the society as a  whole engaged and involved.  

CONCLUSION  

Article 23 of the Indian Constitution prohibits traffic in human beings and begar (forced  labor without payment) and other such forms of forced labor. The causes of trafficking  include deeper structural, social, economic and global factors including corruption,  societal exclusion, gender discrimination, manipulation of children and preference for  foreign victims. The ITPA focuses on commercial sexual exploitation, brothel-based  prostitution, punishment of those who facilitate prostitution and rescue and rehabilitation  measures. However, it does not comprehensively address labor trafficking, organ  trafficking, domestic servitude and other modern forms of human trafficking, hence, its  scope remains narrow and sex-trade centric. Continuing mandamus helps to break the  inertia of the administration, give voice to marginalized laborers, converting rights into 

enforceable duties, ensure data collection and periodic surveys and keeps the society as a  whole engaged and involved.