Gross violations of human rights make “Human Trafficking” a serious global
concern. Anti-trafficking laws in India are covered under a wide range of
complex patchworks, ranging from Indian Penal Code, Immoral Traffic Prevention
Act (ITPA) also known as PITA Act, 1986 to various social legislations. Article
23 of the Constitution of India prohibits trafficking in any form. It prohibits
trafficking in human beings and beggar and other forms of forced labor making
provisions for punishment of the contravention of such laws.
Indian Penal code
has various other provisions dealing with the varied aspects of human
trafficking such as;
• 363 A (Kidnapping or Maiming a minor for the purpose of begging);
• 366 A (procuring a minor girl for sexual exploitation);
• 366 B (importation of a girl from a foreign country for sexual exploitation);
• Section 3 and 18 of the Immoral Trafficking (Prevention) Act, 1956 had
provisions for punishment for taking and procuring of persons for the sake of
• 370 (buying or selling of any person as a slave).
Section 370 of IPC, 1860
Justice Verma Committee was set up after the after math of the tragic Delhi
gang-rape incident. There came Criminal Amendment Act, 2013, major changes were
made in relation to trafficking made to section 370 of IPC and the newly added
section 370 A. Section 370 of IPC has been totally reframed by the amendment
Act. The concept of human trafficking has been added in the newly amended Act.
Amendment of 2013. - Vide the Criminal Law (Amendment) Act 2013 (Act 13 of
2013), the entire section has been changed so as to enlarge the scope of the
offence and include within its purview not just the mischief of slavery, but
trafficking in general - of minors as also adults, and also forced or bonded labour, prostitution, organ transplantation and to some extent child-marriages.
The Previous Section 370 dealt with buying or disposing of any person as a slave
and the section provided “whoever imports, exports removes, buys, sells or
disposes of any person as a slave, or accepts receives or detains against his
will any person as a slave, shall be punished with imprisonment of either
description for a term which may extend to seven years, and shall also be liable
to fine. This position of the section stood prior to section 8 of Criminal Law
Amendment Act, 2013 (w.e.f. 3.2.2013).
The New Section 370 provides “Now the section 370 provides that (1) whoever, for
the purpose of exploitation, (a) recruits, (b) transports, (c) harbors, (d)
transfers, or (e) receives, a person or persons, by (i) using threats, or (ii)
using force, or any other form of coercion, or (iii) by abduction, or (iv) by
practicing fraud, or deception, or by abuse of power, or (vi) 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,
harbored, transferred or received, commits the offence of trafficking.
Explanation further provides that the expression of slavery or practices similar
to slavery, servitude, or the forced labour or services, slavery or practices
similar to slavery, servitude, or the forced removal of organs. The section by
way of explanation further makes it clear that the consent of the victim is
immaterial in the determination of the offence of trafficking.
Punishment- The punishment for the contravention of the provisions of the
Section are provided in Section 370(2), 370(3), 370(4), 370(5),370(6), 370(7) of IPC. These punishments cover all the aspects
of trafficking including
punishments for its aggravated forms etc.
The detailed provisions regarding punishment for trafficking provided in the
criminal amendment Act, 2013 in relation to section 370 are:-
1. Trafficking of persons - 7 to 10 years + Fine
2. Trafficking of more than one person - 10 years to life + Fine
3. Trafficking of minor - 10 years to life + Fine
4. Trafficking of more than 1 minor - 14 years to life + Fine
5. Persons convicted of the offence of trafficking of minor in more than one
occasion - Imprisonment of Natural-life + Fine
6. Public Servant or police officer involved in trafficking of minor
-Imprisonment for Natural -Life + Fine.
Wider Ambit of Exploitation In Section 370
It is seen that while the older section dealt only with the aspect of slavery
the new section widened its horizons to take into several other kinds of
exploitation into its ambit. The term “exploitation” has much wider arena in
section 370. It includes various aspects as stated in 370(1). The purpose of
exploitation is at the core of the offence of trafficking. In addition to this
section, the explanation further added also aides to the meaning of
exploitation. Exploitation further includes;
• Prostitution- which is stated as a kind of exploitation. In Bhagubhai Patel V.
State of Gujarat, the question arose before the court was whether a customer at
a brothel is covered under Section 370 of Indian Penal Code. The learned judge
with a note of caution stated that a customer is also included in section 370.
It was further stated that section 370, which deals with the offence of
Trafficking of Persons, the term "exploitation" includes "prostitution" itself.
This, in essence, means that "prostitution" will now be interpreted as
exploitation. This problematic formulation has now been incorporated into the
recently passed Ordinance. The concern was raised is that By introducing the
language of prostitution itself as exploitation, the amendment endangers sex
workers instead of protecting them from sexual exploitation as there is no
aspect of consent. legislative framework that criminalizes prostitution as
exploitation, drives the practice underground and renders the already vulnerable
sex worker more vulnerable to violence, exposure to HIV and deepens the lack of
legal remedy to redress violence.
• Whether consent a mandatory factor for determination of an offence
-Explanation 2 of section 370 states that the consent of the victim of
immaterial in the determination of the offence of trafficking. It ousts the
possibility of an accused taking the defence of consent of the victim to any act
of physical exploitation or another form of sexual exploitation, slavery or
practices similar to slavery, servitude, or the forced removal of organs.
Pursuant to an application for clarification it was stated that Section 370 of
the Indian Penal Code will have no application in a case wherein the sex workers
engaged in prostitution of their own volition, and not pursuant to any
inducement, force or coercion. This would be a question of fact and a subject
matter of investigation. It is for the Investigating officer to consider,
whether the sex workers had engaged themselves in prostitution of their own
volition or they were victims of sexual exploitation as explained by section 370
of the Indian Penal Code.
• Other forms of sexual exploitation - Section 370 of IPC criminalises people in
sex work since it does not differentiate between "coercive prostitution" and
prostitution; nor does it talk about the "exploitation of prostitution”.
• Forced Labour or Services and slavery- Section 370 covers all the aspects of
forced labour under the ambit of exploitation and also all aggravated forms of
Section 370 penalises buying or selling etc. or disposing of any person as a
slave. It says that whoever imports, exports, removes, buys, sells, or disposes
of any person as a slave, or accepts, receives or detains against his will any
person as a slave, shall be punished with simple or rigorous imprisonment for a
term extending up to seven years, and shall also be liable to fine.
 Sec. 370 (1), IPC,1860.
 Sec. 370 (2) , IPC, 1860
 Sec 370 (3), IPC
 Sec 370 (4), IPC
 Sec 370 (5), IPC
 Sec 370 (6), IPC
 Sec 370 (7), IPC