Human trafficking is a term used for an act that has been historically identified as an act of exploitation and has been criminalized. Off late, there has been a rise in the number of state nations and international bodies that are condemning and criminalizing the act in their books of law. 

Often the term ‘trafficking’ is used to discuss human trafficking but such a conflation may not be quite correct as historically human societies have also mentioned about, and criminalized drug trafficking i.e. trafficking mostly of narcotics. One may also come across terms like child trafficking, bride trafficking, etc. These references are to the social role that is subjected to trafficking. Sometimes the term trafficking is also used to mean sex trafficking, trafficking for organ trade, trafficking for hostilities, trafficking for shadow entertainment, etc. Here, these terms refer to the purpose or end result of trafficking. 

Trafficking, in short, is the procuring, buying, selling, pawning, pledging, moving, transporting, storing, confining of persons for illegal and criminal purposes with force, fraud, deception, coercion, and other criminal or inappropriate means. Persons are trafficked for commercial sexual exploitation (conventionally called prostitution), servitude, bondage, forced labor, organ harvesting and organ trade, and other exploitative purposes. Trafficking is carried out for the gain, profit, or benefit of someone other than the person subjected to trafficking and at the cost of the person so subjected.

Mostly illegal, criminal, and unethical means, starting from the lure, deception, drugging, criminal force, wrongful confinement, kidnapping/abduction, etc. are used to accomplish this movement. 

The means used for trafficking may not always be so clear. Abusing someone’s vulnerability, powerlessness, weakness, abuse of one’s authority over another person, are also the means.

Human trafficking thus has three components- namely the Act, the Means and the End Purpose

the Act – procuring, buying, recruiting, taking, receiving, harboring, transporting, transferring, a person

the Means – force, fraud, deception, coercion, buying, drugging, wrongfully confining, kidnapping/abducting, and such other criminal means

the Purpose or Destination – the purpose is to exploit the trafficked person for the gain, profit or benefit of someone other than the person subjected to trafficking and at the cost of the person so subjected. Some of the common destinations of human trafficking are; sex trade, bonded or forced labor, organ harvesting, and trade, slavery, slavery-like conditions, servitude, illegal adoption (baby-selling), mail bride, human sacrifice, child soldiers. The activities indicated in the point on purpose above are actually the crimes to which the person is subjected at the destinations hence they should be aptly called the destination crimes.

The UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (the “Palermo Protocol”) defines human trafficking as:

• “Trafficking in persons” shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs;

• The consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used;

• The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered “trafficking in persons” even if this does not involve any of the means set forth in subparagraph (a) of this article;

• “Child” shall mean any person under eighteen years of age.

The principal criminal law of India the Indian Penal Code-1860 for the first time in the year 2013 vide an amendment adopted the UN definition in Section 370 with slight modification. 

Section 370 in The Indian Penal Code

(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[1].

Traditionally prostitution and slavery have been the two major destination crimes of human trafficking. The Indian Penal Code 1860 had a provision against slavery in its Section 370 and 370A. Later in the year 2013, first vide an Ordinance, and later by an amendment in the IPC the provision against slavery was replaced by a definition against human trafficking. There were provisions against bonded labor and child labor in the laws. In 1976, a Union law against the bonded labor system was passed which effectively covered the offences of trafficking for forced labor. In the year 1986, the law against child labor was made effective.  

In the year 2018, a central law against trafficking was passed in the Lower House of the Indian Parliament but the same was not passed in the Upper House before the Parliament was dissolved. Hence to date (as of 2020) in India, there is no single law against human trafficking per se.  

As of 2020, there are laws and/or authoritarian provisions against the destination crimes of human trafficking such as commercial sexual exploitation, forced labor, labor exploitation, human organ harvesting and trade, adoption, surrogacy, beggary, etc. Some of them also cover some elements of trafficking for that destination crime.

Anyone who is vulnerable and available and by trafficking whom profits can be made by the trafficker carries the risk of getting trafficked. Infants are trafficked for illegal adoption, organ harvesting, and organized beggary. Children get trafficked for all these purposes as well as for the labor sector. Young people get trafficked for labor sector exploitation, sex trade, shadow entertainment, etc. Young women also get trafficked as common or temporary brides. Old people get trafficked for organ harvesting. People of every religion, political system, age, race, creed get trafficked. Poor people, unsupported and unprotected person/people of poorer countries, people belonging to the lower social strata, people who are victims of war, genocide, disasters are most susceptible to getting trafficked.

There are certain occupations that facilitate human trafficking. They create vulnerabilities, exacerbate them, and thus make a person/persons available for getting trafficked relatively easily. They are situations that erode, breakdown, or weaken the protective mechanisms and support systems of the state and the civil society and facilitate the traffickers’ access to potential victims. Some examples of this are- natural disasters like floods, cyclones, earthquakes. Religious fares, Melas, rallies, rebellions, communal riots, and such organized hostilities, alcohol, and drug parties, rave parties are some more examples.

There are certain occupations that facilitate human trafficking. They create vulnerabilities, exacerbate them, and thus make a person/persons available for getting trafficked relatively easily. They are occupations that by their nature of operations erode, breakdown, or weaken the protective mechanisms and support systems of the state and the civil society and facilitate the traffickers’ access to potential victims. e.g. rural agricultural produce market yards, beedi-making industry, fish processing industry, ladies liquor bars, dance bars, erotic dance clubs, etc.

Human trafficking is carried out with the end purpose of subjecting the person trafficked to a life of exploitation for the profit of person/s other than that person but at the cost of the person who is trafficked. The life of exploitation varies and includes, although it is not limited to prostitution, slavery, servitude, bonded labor, indentured labor, organized beggary, human organ harvesting, and trading, mail brides, adoption/baby-selling rackets, illegal commercial surrogacy/ baby farming camel jockeying, etc.

All the above-mentioned activities may be aptly called ‘the destination crimes’. The activities named as destination crimes are prohibited by law in most countries. In India, there are separate laws to address each type of destination crime.

No! As explained in question no 01, Human Trafficking refers to acquiring human beings by criminal means and inducting them into a variety of exploitative purposes or destination crimes. Thus, they are not the same as destination crimes. Sex trafficking is different than sex trade. The former is carried out for the latter. More clearly, human trafficking is not the same as slavery or bonded labor, while they are distinct they are also very close to one another.

Migration is a relatively permanent shift of abode by a person, family, or a group of people. Historically, the term migration has been used to indicate a voluntary shift of abode for betterment in life. Indian women routinely migrated out of their village, district, or state or in some cases even across the country as a result of marriage. It is known as marital migration. In India, due to the imbalanced growth of educational facilities, the student population also migrated to places having facilities of better or higher education. In other cases, more important jobs made people leave their place of origin and shift to newer places, often permanently. They all had an element of voluntarism and the purpose of the betterment of life.

Historically, persons, families, and groups of people also shifted their abode due to certain unavoidable situations like war, organized violence (riots, ethnic cleansing), famines,  droughts, disasters like earthquakes, forest fires, and tsunamis, an outbreak of epidemics, industrial depression, project displacement, or personal mishaps like marital desertion, abandonment, kidnapping, etc. This category lacked voluntarism strikingly. Hence, it is better described as forced migration, eviction, uprooting, displacement, or stress migration. The element of voluntarism makes migration distinctly stand out from the second category of shift namely eviction.

Trafficking is not the same as migration since the element of consent or voluntarism is missing. In some cases, the element of voluntarism is apparent but closer analysis shows that the consent is for the apparently fair plan suggested by the trafficker as a part of his/her larger game of deception.

When trafficking is interpreted as migration, the crime inherent therein is made invisible or trivial which is incorrect and unfair. Trafficking and migration are however closely related. Unsafe migration often easily glides into trafficking. While some people make the conceptual error some others do it purposely as they have an interest in the destination crime of human trafficking such as labor exploitation, sex trade, etc.

Yes! Trafficking is different from prostitution. 

Trafficking refers to a set of acts such as procuring, buying, selling, moving, transporting, etc. of a person through deception, coercion, force, fraud, compulsion, etc. to exploit the person. Prostitution is one of the ways of exploiting the trafficked person. Speaking strictly legally, prostitution is the commercial sexual exploitation of a person. Trafficking is the act of making such a person available so that she can then be prostituted.

Yes! Trafficking is different from prostitution. 

Trafficking refers to a set of acts such as procuring, buying, selling, moving, transporting, etc. of a person through deception, coercion, force, fraud, compulsion, etc. to exploit the person. Prostitution is one of the ways of exploiting the trafficked person. Speaking strictly legally, prostitution is the commercial sexual exploitation of a person. Trafficking is the act of making such a person available so that she can then be prostituted.

No! We often hear some people stating that prostitution per se is not illegal in India OR prostitution per se is legal in India. Both these interpretations of the law are wrong. To understand the issue correctly one has to first understand what is meant by the term prostitution. It is significant that the Indian law – the Immoral Traffic (Prevention) Act -1956 – when revised in 1986, adopted a very progressive and clear definition of prostitution. Sec 2(f) of the ITP Act states;

“Sec 2 (f) “Prostitution” means the sexual exploitation or abuse of persons for commercial purposes and the expression “prostitute” shall be construed accordingly”

It is important to note that the law of ITPA 1956 defines prostitution as commercial sexual exploitation and penalizes the actors who commit, cause, or facilitate it. It is only logical that the same law cannot consider prostitution as a lawful activity. Similarly, no other law in India gives legal permission to prostitution.

The term sex trade is yet another term that is used for prostitution or commercial sexual exploitation. The sex trade is not permitted under any law in India.

The third conventional (pre-1986 revision of the ITPA) usage of the term prostitution is – prostitution as an act of a female selling her bodily sex to a man. This was not a punishable act although there was no positive or supportive recognition of this act as the woman’s right. And many other factors attached to such a sale such as making it an organized sex trade, running a brothel, soliciting in public or near certain prohibited areas, etc were made punishable. 

When prostitution is defined as commercial sexual exploitation as mentioned above (Sec 2(f) of ITP Act) the law provides to penalize the following acts;

• Procuring someone for prostitution- Sec 5
• Detaining (variously) someone for prostitution- Sec 6
• Running or managing a brothel- Sec 3
• Giving one’s premise for running a brothel
• Living on the earning of someone’s prostitution (the woman’s child below the age of 18 years is exempted)- Sec 4
• Giving one’s premise for selling of sex by a woman all by herself and alone-Sec 7
• Soliciting for prostitution in a radius of 200 meters from a hospital, an educational institution, a place of worship, and such other places prescribed by the government from time to time.- Sec 7
• Soliciting in a public place (mostly) by a woman whose bodily sex is on sale-Sec 8
• Soliciting in a public place (mostly) by a pimp-Sec 8
• Seducing someone to get into prostitution-Sec 9

When we put a variety of laws together and find the quintessential position of law on prostitution, one can safely state that in India: If an adult (not below 18 years of age/offence under IPC, POCSO and ITPA) person (including a man, not just a woman) alone (not two or more persons together/that will make the place a brothel and punish it under ITP Act) sells her/his bodily sex (not pornographic material/offence under IPC, ITA, POCSOA) to a person in her private (neither in public places nor in prohibited places/offence under ITP Act and respective State Police Acts) premise which is not within a distance of 200 meters from a place of worship, educational institution or a hospital to a (heterosexual or same-sex) partner is not a punishable offence in India.

Unlike in Bangladesh, where a woman above 18 years of age can submit her request before a court of law and get a license to sell her bodily sex to a man, India does not have any such provisions for explicit and positive recognition for selling one’s bodily sex.

Legalization of the sex trade means the policy and the process of the state giving positive legal recognition to the sex trade like any other trade. Once legalized the various components of the sex trade (procuration, recruiting, brothel keeping, pimping, soliciting, advertising, etc.) become official and legitimate commercial activities and can become eligible for such benefits as bank loans, official infrastructure, state protection, and support, etc. It also gets subjected to a variety of taxes and regulations which are inevitable to any official commercial activity. The persons engaged in the activity (sex trade) are recognized by a variety of categories like workers, supervisors, agents, managers, and so on.

Those who seek protection from the sex traders seek decriminalization of the first type. Those who seek to protect the prostituted women (persons) demand decriminalization of the second type.

Yes! Just as one has the freedom or right to do a certain act (in this case selling one’s bodily sex), that person also has the responsibility to not cause annoyance to the public or violate anyone’s rights in exercising one’s right. Just as the person has certain rights, the other people and the society in general, too have certain rights and there are areas of conflict of rights. One’s right to sell one’s bodily sex is limited by the related rights of the other persons in society.

ITPASection 7 (a) ensures that a member of the public, people in serious situations, and children and youth of impressionable age are not involuntarily exposed to the acts of prostitution, indecent exposure, or soliciting.

ITPA Sec. 20 ensures the rights of the residents to not get exposed to or annoyed by the activities related to prostitution including the frequent thoroughfare of strangers who visit the premise with an intention to sell and buy sex and empowers the respective magistrate to have the woman evicted from the place after due inquiry.

Sec 8 (a) states,

“Whoever, in any public place or within sight of, and in such manner as to be seen or heard from, any public place, whether from within any building or house or not-

(a) by words, gestures, willful exposure of his person (whether by sitting by a window or on the balcony of a building or house or in any other way), or otherwise tempts or endeavours to tempt, or attracts endeavours or to attract the attention of, any person for the purpose of prostitution;…

shall be punishable on first conviction with imprisonment for a term which may extend to six months or with fine which may extend to five hundred rupees, or with both

Although these are offences the law does not aim to give harsh punishment to the person mostly a woman for the violation of the above provisions. Sec 10-A states,

Sec. 10A. Detention in a corrective institution

(1) Where-

(a) a female offender is found guilty of an offence under section 7 or section 8, 39[***]; and.

(b) the character, state of health and mental condition of the offender and the other circumstances of the case are such that it is expedient that she should be subject to detention for such term and such instruction and discipline as are conducive to her correction, it shall be lawful for the court to pass, in lieu of a sentence of imprisonment, an order for detention in a corrective institution for such term, not being less than two years and not being more than five years, as the court thinks fit.

All this goes to indicate that the law;

• does not aim to penalize the woman (a female offender) whose bodily sex is sold.
• does not aim to penalize the woman for violation of Sec 7 and Sec 8.
• does aim at penalizing the organized sex trade and sex traders

The spirit and the text of progressive social legislation in itself are not sufficient to bring about the desired change. For its implementation, it grossly depends upon the political and administrative will which reflects in the creation of budgetary provisions and enforcement back up. The people and forces entrusted with the responsibility of implementing a law belong to the same unjust society which creates, sustains, and thrives on social victimization and trafficking for exploitation. It requires growing plurality in the society as against concentration of power and wealth, commitment to equality and human rights, strategic interventions, and tireless efforts to bring about the desired change. In India, the laws against labor class exploitation of children, slavery, evil social traditions of sexually exploiting the girls of certain marginalized communities, and the systems of temple-based commercial sexual exploitation like the Devadasi system are very old but mostly not implemented.

Commercial Sexual Exploitation is an appropriate term or label for what is traditionally and conventionally, yet inaccurately, referred to as prostitution. It is an act;

• that is carried out in an organized manner
• of sexual exploitation of a person
• that involves an exploiter
• in which sexual exploitation is effected singularly or in an organized manner
• for the profit of the exploiter and at the cost of the victim
• which provides to the buyer access to the sexual faculties of the exploited person
• where a person’s sexuality is sold to any customer who pays for it.

Exploitation is an essential characteristic of the term ‘Commercial Sexual Exploitation’.

Commercial in the label indicates the commoditization of a human being or its faculties and presupposes production/ collection (procurement), storage, transport, packing, labeling, display, advertisement, sale, retail outlet, sales manager, and commission of the same.

The term prostitution was conventionally understood as a solo act of selling her bodily sex by a woman. Hence colloquially the term prostitution in itself did not convey exploitation. 

Traditionally the term prostitution did not indicate or imply the presence or role of any person other than a woman i.e. the seller of her bodily sex and a male buyer. The term prostitution did not convey the reality accurately but wrongly projected the woman as an independent solo actor acting on her own accord, for her own profits by selling her own bodily sexuality.

Neither the traditional understanding of the term prostitution nor the pre-1986 legal definition of prostitution takes cognizance of the criminal organization of the sex trade or of the role of the procurers, traffickers, managers, brothel keepers, pimps, and financiers.

The term Commercial Sexual Exploitation (CSE) covers the reality far more accurately as compared to any other terms, which have been used to refer to the phenomenon under discussion.

Rehabilitation is of various types. For the moment let us focus on economic rehabilitation or economic self-reliance. The purpose of a sound and sustainable economic rehabilitation of a victim of CSE&T is to provide such livelihood skills to the victim whereby the person can become self-reliant (or be self-employed) by way of running a small enterprise such as a beauty care unit or a vegetable shop or a catering service. Alternatively, or additionally, the person is given sustained employability. The term sustainable is critical here.

In the past, the activities covered under economic rehabilitation were limited, archaic, and divorced from the market consideration such as making incense sticks, wax candles, rebottling of phenyl, or chalk making or at the most, teaching small time tailoring.

These days young adults (boys and girls) are sought by food chains who give them barely a couple of days’ training, a smart uniform, a cap, a cell phone and place them in a food outlet in an airconditioned Mall. This attracts these children who even cut their formal education short to join. However, the skills gave being extremely specific and limited when the enterprise slumps there are few alternatives before these young adults. In such a situation, the plight of the victims who are without a family support system gets compounded making them further desperate and vulnerable.

Many civil society organizations have in the last decade or more evolved several success stories of sustainable economic rehabilitation such as upmarket fashion designing, beauty care, hospitality work like housekeeping, catering, and have linked them with the corporate sector. The gloomy picture of economic rehabilitation is now changing and there is light at the end of the tunnel.

In most cases of human trafficking, the victim is shifted from his/her place of origin to the destination place better accessible for the exploiter where the victim is commercially sexually exploited. However, such physical transportation of the victim is not an absolutely essential condition of human trafficking. In some cases of commercial sexual exploitation, the exploiters travel long or short distances and visit the countries and foreign places where they can sexually exploit victims without much risk or fear of the law. This phenomenon is termed sex tourism. Today, a substantial part of business and entertainment tourism includes sex tourism. Some places have emerged as the even world capitals of sex tourism e.g. Bangkok in Thailand, Amsterdam in the Netherland, and beach-based tourism in Kerala, Goa or Odisha, etc in India. However, it is not limited to beach-based tourist destinations alone. 

Tourism offers several benefits to a tourist; prominent among them for a sex tourist is a novelty, near immunity against legal action, and most importantly facelessness or anonymity.

When the tourist is in a foreign land, the anonymity relieves him from several social and legal constraints, which he otherwise faces in his own country. As a Japanese proverb goes, “The traveler knows no shame” or as a European proverb states, “the farther I go from home the less moral I become”. He, thus, ventures into sexual experiments and attempts to gratify all his socially unacceptable sexual desires and fantasies.

Sex tourism consolidates racial discrimination and exploits other races, which the tourists think, are inferior. A variety of doctrines enable the tourists to justify the exploitation by saying that sex with children is acceptable in the culture of the society they are visiting.

In general, due to globalization and advancement in air travel technology overall tourism especially international has increased. The tourism and entertainment industries grow hand in hand. With the increase in sex tourism, the demand for victims in the sex trade has also increased, which in turn has fueled human trafficking.

People undertake tours for a variety of purposes like business, entertainment, pilgrim, adventure, medical treatment, etc. It is lamented that a considerable part of tourism is comprised of sex tourism. Tourism offers anonymity or facelessness as one goes to places where he/she is not known by his/her face. In such situations, the external, as well as the internal restrictions, get slackened and a person finds it easier to indulge in sexual encounters. Tourists are almost always in a much better financial position than the victims and as consumers, they largely dictate the terms of the trade. To meet their demands vulnerable individuals (young adult women and children) are trafficked in the destination areas. Sex tourism is not always necessary or only international. Considerable domestic and international sex tourism takes place within India.

Yes, sex trafficking is a twin of sex tourism. Traffickers in the destination countries (includes India) traffic unprotected children and women, run fake orphanages or shelter facilities or sex rackets, and facilitate the access of the sex tourists to those children and women for exploitative sexual encounters. Sex tourism fuels sex trafficking.

Yes! It has been observed that children are the prime victims of sex tourism especially international tourism. The factors behind this are as follows;

There are many persons who want to have sex with children as their personal preference. 

There are some who argue that they can get sexual gratification only by having sex with children. There are still others who believe that children and virgins are less likely to be infected and therefore are also less likely to spread sexually transmitted infections (STIs) including HIV infection. And thus they think that they can have safe sex even without using a condom if they have sex with children and need not forego sexual pleasure. There are still others who believe that sex with children and virgins fetches prosperity in business and virility to themselves. However, these are sheer myths spread to normalize sex with children, to make it look as if it was not done with an intention to violate a child.

In many parts of the world there are millions of children living on and off the streets, away from their families, without any responsible adult supervision or support system and hence can be easily targeted for sex without inviting many legal risks.

No! Domestic tourism is as much a reality as international tourism.

Of late, several reports from Vietnam, Cambodia, and other poor countries have indicated that traffickers and sex-traders run fake and makeshift orphanages where children who are not necessarily orphans but certainly vulnerable or even children living on and off the streets are temporarily gathered to act as the orphan residents of the orphanages and are made available to sex tourists against payment so that the tourists can sexually exploit those children. It is portrayed as a charitable activity expressing the noble and charitable intentions of the tourists. It is an organized crime in the sense that some parts of the hospitality industry like hotels and tour operators are also found involved in it. They make such offers to potential tourists which makes it easier for them to identify sex tourists. Some hotels have printed pamphlets and booklets that serve as the menu card for choosing the type of orphanage. The hotels operating hand in gloves with the orphanage owners/managers work out the payment and arrange the physical tours. Once the season is over then or intermittently in between the resident children are disbanded and are brought back when the tourists arrive.

These orphanages are often illegal unregistered or thrive as the state regulatory mechanisms are slack or corrupt.

Vulnerable children, children living without any support systems, children out of protective cover, or without a responsible adult positive supervision, children living on and off the streets are trafficked into such fake or makeshift orphanages as orphans and are sexually exploited. Sometimes they are kept in captivity for a very long period.