Annual Report - National Human Rights Commission

Annexure 12
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in published materials were studied. The report of the Lawyers Collective, based on a field
study conducted by them in 2003, was also reviewed. The judgements by the Supreme
Court of India and various High Courts and certain trial courts on the subject as well as the
recent legislation by the Government of Goa (Goa Children’s Act, 2003) were also studied.
Discussions were held with eminent jurists and experts. Accordingly, the points that emerge
with respect to amendments and changes of ITPA have been collated and are placed below:
Comprehensive Code on Trafficking
The Constitution of India, under Article 23, prohibits trafficking in human beings. This includes
trafficking for all purposes. The United Nation’s Convention on trans-national organized crime,
to which India is a signatory, also speaks about trafficking for all types of exploitation. Therefore,
it would be appropriate that the existing law is replaced by a comprehensive legislation, covering
all forms of trafficking. The bottom line of the proposed legislation should be on the process of
trafficking, and not the purpose of trafficking. In fact, the purpose could be any under the two
broad categories: (a) for commercial sexual exploitation, which includes exploitation in brothels
and non-brothel-based situations, paedophilia, pornography, cyber pornography, sex tourism or
sexual exploitation taking place under the facade of massage parlours, beauty parlours, beer
bars, escort services, etc. (b) other types of exploitation, including camel jockeying, begging,
forced delinquency, organ transplant by force or deceit or lure, false marriages, false adoptions
as well as trafficking for labour in the field of industry, entertainment, domestic environment,
etc. or any other exploitative situation. Therefore, the law has to be comprehensive enough to
address all issues of trafficking. A similarity can be drawn from the Goa Children’s Act, 2003. A
code incorporating the substantive and procedural laws would be ideal.
Definition of Trafficking
It is advisable to provide a legal definition of trafficking. The Goa Children’s Act, 2003 could be
considered as an example. However, in defining ‘trafficking’, the following points should be
explicit:
(a)
(b)
(c)
That consent is immaterial for any person who is under 18 years.
That with respect to persons who are 18 years and above, consent should mean
‘informed consent under no compulsion whatsoever’.
Trafficking, by definition, has certain essential ingredients. The first aspect is the
displacement of a person from one community but need not essentially mean physical
movement from one place to another. Trafficking could be within the community too.
For example if the daughter of a woman subjected to commercial sexual exploitation is
lured or coerced by the brothel owner to join her brothel as a victim of CSE, this also
should be considered as trafficking, as the child is displaced from the community of the
mother to the community of the brothel.
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