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Human Trafficking And Fundamental Rights

Slavery was, in a very real sense, the first international human rights issue to come to the fore. It led to the adoption of the first human rights laws and to the creation of the first human rights non-governmental organization. And yet despite the efforts of the international community to combat this abhorrent practice, it is still widely prevalent in all its insidious forms, old and new.-Kofi Annan

Introduction:
We all have watched one or more episode of any crime drama on the Indian Television shows that depict various real instances with a story touch. One of those crime stories is about a young girl of 14 yrs., Tina Who vanished one day suddenly from her home in Delhi and later found in Chandigarh, Punjab[1].

The very purpose of money for the seller’s side and for the purpose of sexual activities, for the buyer’s side. But what is being done in the scenario is wrong and violative of rights at the very first sight but the question here stays is, what kind of a wrong it is. Does Indian Law deal with it? Does the Indian Penal Code prohibit it? Does the Constitution guarantee any right or remedy against it?

In this article, we’ll be discussing the nature of the act committed above in the story, that is Human Trafficking, the related provisions of Indian Laws, how fundamental rights are related to it, etc.

Human Trafficking:

Trafficking generally means selling and buying something that is illegal but when it is read together with human, it changes the meaning and makes it overall another act or offense.

As per the definition given in the Trafficking in Persons Protocol, it is evident that Trafficking in persons means the act of Recruitment, transportation, transfer, harboring or receipt of persons by the means of Threat or use of force, coercion, abduction, fraud, deception, abuse of power or vulnerability, or giving payments or benefits to a person in control of the victim For various purposes such as exploitation, which includes exploiting the prostitution of others, sexual exploitation, labor, slavery or similar practices and the removal of organs.[2]

Human trafficking trade is the third-largest organized crime across the world after drugs and the arms. Human trafficking across the world is done generally for sexual exploitation where women and children turn out to be victims of it.[3]

We will be dealing with Human Trafficking in India later in this article.

Relationship between Human Trafficking and Fundamental Rights:

Fundamental Rights as provided under part III of Indian Constitution have unequivocally claimed the wrongness of human trafficking in terms of morality and legality both. There is a well-established link between Human Rights, Fundamental Rights, and Human Trafficking. Indian Constitution recognizes the fundamental right of non-discrimination, equality, education, constitutional remedies, freedom of speech and expression that includes right of free movement, right to life and liberty, etc.

Article 23[4] talks about the prohibition of traffic in human beings and forced labor and provides its citizens altogether a right against trafficking. And if there have been no separate article or fundamental right for prohibition for human trafficking it would have been a violation of fundamental rights by the virtue of the golden triangle of fundamental rights that is constituted by Article 14, 19 and 21.

Dealing further with this, Article 19 protects certain rights regarding freedom of speech and expression that protects the right to move freely throughout the territory of India under sub-clause (d). It is one of the directly related rights and there are numerous rights that are going to be affected or violated as of right of practicing the profession of carrying business, it is more of a consequence of human trafficking.

Article 21 protects the very Right to Life and Liberty of people in India, both citizens, and non-citizens. Referring to the interpretation made in the case of Kharak Singh v. State of Uttar Pradesh[5] It was stated:
life is not a mere animal existence and there is more to it. Hence humans can not be sold like commodities or animals hampering their Right to life.

As very rightly said in the case of Maneka Gandhi vs. Union of India[6], right to life embodied in Article 21 of the Indian Constitution, is not merely a physical right but it also includes within its ambit, the right to live with human dignity. And hence dignity cannot be hampered by any act of contractual human dealing.

Legal Framework Relating to Human-Trafficking in India:

Indian Penal Code, 1860

The colonial code, drafted by sir Lord Macaulay, initially dealt with the offence of Human Trafficking under section 370 of the code that was later amended by criminal law amendment act, 2013 and one more section, section 370A was added to the code that deals with exploitation and trafficking.

The definition provided under section 370 of Indian Penal code (IPC) is quite similar to the one provided in the Trafficking in Persons Protocol. It states:
If a person for the purpose of exploitation, recruits, transports, harbors, transfers, or receives a person(s) by the means of threat, use of force or any type of coercion, by abduction, by fraud or deception, or by abuse of power, by inducement, including giving some benefits or payments where the exploitation has to be physical in nature, it can be sexual also. In determining the offence of trafficking, the consent of the victim becomes immaterial. The IPC provides for the punishment of seven to ten years to the offender and as per the gravity of offence the punishment keeps changing the duration of imprisonment and impose fine.

The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989
Some marginalized communities have always faced most of the crimes due to the social status and stigma attached to the community, it can evidently be seen in the history of India in times of kings and in colonial India as well. The atrocities have still not ended. The crime of human trafficking has also affected the marginalized group the most reason being their lack of resources and societal status.

If the offender knows that victim belongs to these communities than The SC and ST (Prevention of Atrocities) Act can be used to deal with the offence of human trafficking. Section 3 of the said act counters the atrocities that are committed against people belonging to Scheduled Tribes and Scheduled Castes. It covers various forms of trafficking as forced or bonded labors and sexual exploitation of women. Punishment of six months (minimum) is provided which can be extended to five years if the offence is committed under the definition of section 3. The punishment keeps varying as per the authority of the offender and the gravity of offence.

Conclusion
The existence of the law itself states that there is a flaw in society and it has to be curbed out. A perfect flawless society is a fool’s dream. There are various laws, provisions as discussed above to counter the very act of human trafficking. It is inferred that various Human Rights, Fundamental Rights and Constitutional Rights are violated by the offence of human trafficking and to counter them the existing laws are covering most of the dynamics of the offence.

End-Notes:
  1. India: From Darjeeling to Delhi - Story of a young girl who was trafficked, Available at: https://www.unodc.org/southasia/frontpage/2013/Sept/india-from-darjeeling-to-delhi-story-of-a-young-girl-who-was-trafficked.html (last visited April 8th, 2020)
  2. Human Trafficking, available at https://www.unodc.org/unodc/en/human-trafficking/what-is-human-trafficking.html (last visited on april 9th, 2020)
  3. Janani. G.S , Dr. S.Pandiaraj, HUMAN TRAFFICKING IN INDIA, International Journal of Pure and Applied Mathematics 44 (2018)
  4. The Constitution of India
  5. AIR 1963 SC 1295
  6. 1978 SCR (2) 621

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