Section 370 of the IPC-

INTRODUCTION-

The introduction discusses the concept of human trafficking, defining it as the recruitment,
harboring, transportation, or obtaining of a person through force, fraud, or coercion for
extracting labor or services involuntarily. The issue has persisted in India since ancient times,
peaking during colonial rule. Despite numerous legislations aimed at addressing human
trafficking, the problem persists due to various factors like paedophilia, patriarchy, misogyny,
and marginalization. The prevailing social evils and a sense of supremacy based on factors
like gender, religion, caste, creed, and color contribute to the persistence of human
trafficking. The introduction emphasizes the importance of combating this menace due to its
blatant violation of human rights.

Several legislations in India, such as the Immoral Traffic (Prevention) Act, 1956, and the
Protection of Children from Sexual Offences Act, 2012, attempt to address human trafficking.
However, Section 370 of the Indian Penal Code (IPC), amended in 2013, stands out as a
comprehensive legislation discussing the ingredients and punishments related to human
trafficking. The introduction highlights the significance of understanding Section 370 of IPC,
its uniqueness as the first legislation on the subject, and the need to address its lacunae to
effectively reduce the prevalence of human trafficking.

BACKGROUND OF SECTION 370, IPC-

Section 370 of the Indian Penal Code (IPC) is a crucial legislation in addressing human
trafficking. Drafted during the colonial era by Lord Macaulay, its original purpose was to
protect the population in India, which was exploited as slaves by the British. The initial
wording focused on the illegal trade and treatment of individuals as slaves. However, post-
independence, it became evident that the section needed restructuring. The Criminal
Amendment Bill of 2013, influenced by the Justice Verma committee formed after the
Nirbhaya rape case in 2012, played a pivotal role in amending Section 370.

The Verma committee responded to demands from the national network of sex workers,
expanding the scope beyond sexual violence to encompass general violence, especially
related to trafficking. The amended Section 370, proposed by the committee, broadened the
definition of human trafficking and included specific punishment clauses based on the nature
of the offense and the victims involved. This amendment aimed to provide greater protection
for women and children against human trafficking, differentiating between those trafficked
involuntarily for sexual acts and those doing so willingly.

The comprehensive changes made by the Verma committee resulted in a more detailed and
nuanced Section 370, ensuring a more effective response to the menace of human trafficking.
Thus, the amendment, enacted through the Criminal Amendment Act of 2013, marked a
significant transformation of Section 370, with the committee's efforts stemming from the
aftermath of the Nirbhaya incident. Understanding this background is crucial for
comprehending the inception and provisions of Section 370 of the IPC.

BRIEF ANALYSIS OF SECTION 370-

Section 370 is divided into seven clauses, with the first clause addressing the substantive
offense and the subsequent clauses detailing punishment laws. The first clause specifies that
anyone who recruits, transports, harbors, or receives a person for exploitation through threats,
force, abduction, deceit, abuse of power, or inducement is considered trafficked. The section
defines exploitation broadly to include physical or sexual exploitation, slavery, servitude,
practices similar to servitude, or forced organ removal.

The punishment for sexual exploitation is outlined in section 370(a), with a penalty of three
to five years of rigorous imprisonment. The explanation in the section clarifies that the
victim's consent is immaterial in determining the offense of trafficking.

The remaining clauses stipulate rigorous punishments for various forms of human trafficking.
Clause 2 establishes a general punishment principle, stating that anyone committing human
trafficking can be imprisoned for seven to ten years, depending on the case's circumstances,
and may also face a fine. Clauses 3, 4, 5, and 6 focus on aggravated forms of trafficking,
especially involving minors. For instance, clause 3 mandates imprisonment of not less than
10 years, extendable to life imprisonment, and a possible fine for trafficking more than one
person. Clauses 4, 5, and 6 specifically address trafficking of minors, prescribing increasingly
severe penalties for offenses involving multiple minors or repeated offenses.

Finally, clause 7 states that if a public servant is involved in trafficking, they may be subject
to life imprisonment and a fine. Overall, Section 370 categorizes human trafficking as a
cognizable and non-bailable offense, reflecting the seriousness with which it is regarded
under the law.

IMPORTANT LEGISLATIONS TO COMBAT HUMAN TRAFFICKING IN INDIA-

Several important legislations in India aim to combat human trafficking, addressing various
aspects of this pervasive issue:

Article 23(1) of the Indian Constitution:

Prohibits trafficking in human beings and forms of forced labor.

Defines forced labor broadly, encompassing not only physical force but also legal and
economic factors that compel a person to provide labor.
A landmark Supreme Court judgment in the case of People's Union for Democratic Rights v.
Union of India clarified the scope of Article 23.
Criminal Law (Amendment) Act 2013:

Enacted to address gaps in existing criminal laws related to sexual offenses.

Implemented recommendations from the Justice Verma Committee report.
Consolidated the definition of "Human Trafficking" under Section 370 of the Indian Penal
Code (IPC).
Substituted Section 370 and introduced Section 370A of IPC to prevent exploitation in any
form.
The Immoral Traffic (Prevention) Act, 1956 (PITA):

Originated from the Suppression of Immoral Traffic in Women and Girls Act, 1956 (SITA).
Later amended and renamed as PITA in 1986.
Primarily focuses on the relationship between trafficking and prostitution.
Addresses issues related to child prostitution, prescribing severe punishments for offenders.
Protection of Children from Sexual Offences (POCSO) Act, 2012:

Clearly defines various forms of sexual exploitation, pornography, and penetrative/non-

penetrative sexual abuses.
Defines a child as any person below the age of 18 years.
Provides for severe punishments for offenses against children, with penalties determined by
the gravity of the offense.
The Trafficking of Persons (Prevention, Protection, and Rehabilitation) Bill, 2018:

Introduced in response to a high number of reported human trafficking cases in 2016.

Aims to investigate trafficking cases and provide for the rescue and rehabilitation of
trafficked persons.
Allocates funds for constructing rehabilitation centers and imposes penalties for various
trafficking-related crimes.
These legislations collectively form a comprehensive legal framework to address different
aspects of human trafficking, from forced labor to sexual exploitation, with a focus on
prevention, protection, and rehabilitation.

CAUSES OF HUMAN TRAFFICKING-

The International Labor Organization reports a staggering 25 million victims of child labor
globally, and several factors contribute to the persistence of human trafficking, particularly in
India:

Profit Generation:

The human trafficking industry generates an annual profit of approximately $150 billion.
Two-thirds of this profit comes from commercial sexual exploitation, with the remaining
from forced economic exploitation.
The demand for human beings as commodities drives the industry, leading to an increase in
profit, especially in the commercial sex sector.
Destitution and Socioeconomic Conditions:

Victims often resort to selling their bodies due to extreme poverty, lack of education,
violence, and conflict, among other socioeconomic factors.
The dearth of essential resources for survival pushes individuals into vulnerable situations,
making them susceptible to trafficking.
Identification Challenges:

Human trafficking cases are challenging to identify because traumatized victims may struggle
to provide information.
Victims are often aware of the illegal nature of trafficking, leading them to remain silent to
avoid legal consequences, resulting in underreporting and unidentified cases.
Vulnerability of Women and Children:

Societal factors such as a misogynistic approach, patriarchal structures, early marriages, lack
of birth registration, and customary practices contribute to women being the primary targets
of human trafficking.
Statistics reveal a rise in sexual exploitation among trafficked victims, with the majority of
those trafficked for sexual exploitation being female.
Children, too, are vulnerable due to an increasing demand for cheap labor worldwide, and
their susceptibility is exploited by employers who can easily manipulate their needs.
The overall picture depicts a complex web of socio-economic factors, profit motives, and
societal attitudes that contribute to the prevalence of human trafficking, with women and
children being particularly vulnerable to exploitation.

RELEVANT CASE LAWS RELATED TO SECTION 370 IN INDIA-

The provided information summarizes various landmark legal cases in India related to human
trafficking and child protection:

Laxmi Kant Pandey vs Union of India (1984) 2 SCC 244:

Supreme Court established procedures for monitoring inter-country adoptions to prevent

child trafficking.
Emphasized the need for careful consideration before allowing foreign adoption to avoid
child abandonment, forced labor, or sexual abuse.
Bandhua Mukti Morcha vs. Union of India and Others AIR 1984 Supreme Court 802:

Supreme Court directed Central and State governments to strictly enforce labor laws and
impose severe penalties for non-compliance.
Emphasized the provision of proper working conditions, especially for those exposed to
polluted air and inadequate drinking water.
Vishal Jeet v. Union of India, (1990) 3 SCC 318:

Court acknowledged the socio-economic dimension of trafficking.

Advocated for severe and speedy trials against traffickers, pimps, and brothel keepers.
Called for the responsibility of the Central and State governments in safeguarding the
interests of the people.
Munni vs State of Maharashtra – Criminal Writ Petition No. 227/2011 (Bombay High Court):

Court highlighted the paramount importance of protecting trafficked children.

Advocated for the role of Child Welfare Committees in ensuring the care, protection, and
rehabilitation of trafficked children, with their decisions being final and binding.
Bachpan Bachao Andolan v. Union of India, (2010) 12 SCC 180:

Suggested the creation of the National Commission for Protection of Child Rights (NCPCR)
for implementing the Juvenile Justice Act.
Directed states to comply with the provisions of the Act.
Neerja Chaudhary v. State of Madhya Pradesh AIR 1984 Supreme Court 1099:

Established principles for the rehabilitation of bonded laborers.

Prerna v. State of Maharashtra: 2003 (2) MAH.L. J. 105:

Bombay High Court provided guidelines for the care and protection of trafficked children.
Kamaljit vs State of NCT of Delhi 2006:

Recognized trafficking as an organized crime.

Advocated for strict provisions to combat this menace.

LOOPHOLES OF THIS SECTION IN THE CONTEXT OF TODAY’S HAPPENINGS-

Section 370 of the Indian Penal Code (IPC) is regarded as a comprehensive law addressing
human trafficking, but it has certain lacunae that need attention:

Explanation 2 of this section:

This clause deems the consent of the trafficked person as immaterial, ensuring the person's
safety.
However, it results in collateral damage for those recruiting individuals for hard labor, as it
does not specify the age of consent.
The lack of age specification allows individuals to give initial consent and later claim
otherwise, creating potential issues for genuine recruiters.
The clause assumes deceit in obtaining consent, which may jeopardize the position of the
person recruiting for hard labor.
Explanation 1 of this section:

This clause defines exploitation but has certain elements missing, constituting loopholes.
While it includes physical and mental exploitation, it fails to explicitly mention mental
exploitation, potentially leaving such victims outside the purview of trafficking.
The use of the phrase "practices similar to slavery" is considered vague, lacking a formal
definition and allowing for different interpretations, causing ambiguity.
In summary, while Section 370 is a well-crafted law, these loopholes need consideration and
possible amendments to ensure more effective and precise regulation of human trafficking,
particularly in addressing issues related to consent, age specifications, and the definition of
exploitation.

SUGGESTIVE CHANGES TO FILL THE LACUNAE-

The above-mentioned lacunae that have been mentioned in the explanation clauses can be
filled by adding
or subtracting some points in the clauses. In the 1st explanation, physical and sexual acts are
considered to
be within the ambit of exploitation, but it should also include mental exploitation in the
definition of the
term exploitation. So, the mental aspect should also be incorporated in this clause. Also in the
same clause,
the phrase practices similar to slavery should be getting away with or should be replaced by
something
more concrete, i.e. they should have mentioned the practices which are similar to slavery.
There could also
be a change in clause 6, i.e, the nature of imprisonment should be mentioned in the clause. As
the clause
entails punishment for trafficking a minor on more than one occasion, so the nature of
punishment should
be mentioned because similarly the clause 4 also discusses the trafficking of the minor but
there the nature
of punishment has been mentioned, viz, rigorous. Therefore, in clause 6 the nature of
punishment should
be added, and most probably nature should be rigorous following the principle of Ejusdem
Generis.
Therefore, these are some of the important suggestive changes that section 370 should
incorporate so that
it becomes more lucid and comprehensible.

CONCLUSION-

Human trafficking is a longstanding and pervasive evil that poses a threat to the dignity and
security of its victims, violating their fundamental human rights. Addressing this issue
requires robust legislation and effective policy implementation. Popular media can play a
crucial role in reducing human trafficking through widespread awareness campaigns.
Additionally, efforts should be directed towards eliminating discrimination against women,
particularly in employment opportunities. Collaborative action within society is essential to
combat this menace and create a healthier, safer environment for everyone.