ARE VICTIMS BECOMING OFFENDERS UNDER THE IMMORAL TRAFFICKING (PREVENTION) ACT, 1956?

The authors of this blog are Ms. Divya Singh of Banasthali Vidyapith and  Mr. Mujeeb Ur Rehman of  National University of  Study and Research in Law, Ranchi.

   

“GIRL TRAFFICKING MORE HEINOUS OFFENCE THAN DRUG TRAFFICKING, BUT LESS STRINGENT”^[1]

In India Prostitution is not illegal per se, rather soliciting the same is illegal. India has more than 7 lakh prostitutes, this is on record data and the actual figure may rise much more than this. The main source through which women are thrown in this sector is human trafficking. The Supreme Court in many instances has affirmed this view. The ITP act was implemented to suppress these immoral activities. But since the majority of the prostitutes are victims of trafficking which brought them to this hell, will it be justified to convict them as offenders under the said act? Loopholes and inefficiency of the ITP act are transforming the case worse. A study conducted by NHRC and UNIFEM reveals that they are victims of rape due to forceful consent obtained from them by the traffickers. First, they are trafficked, sexually, and physically abused and then they are convicted by the said act. 

HUMAN TRAFFICKING AND COMMERCIAL SEXUAL EXPLOITATION

One of the biggest areas of concern in our country (and round the world) pertains to offences committed silently and under the garb of darkness on lakhs of poor children and women who are uprooted illegally from their places. It now stands undisputed that the prime mover of human trafficking institution is for Commercial Sexual Exploitation.^[2] Offences committed initially on them never come to surface. Eventually, sexual abuse becomes an intrinsic part of their life. It then gets termed as prostitution and then the abuse borders on being consensual. It is this ferocious circle of missing children/women-trafficking-abuse prostitution which needs to be curbed. Ironically the term ‘trafficking in person’ is nowhere defined in our law. In such instances, we cite the United Nations Palermo Protocol.^[3] The growing trafficking in women is principally for prostitution.^[4] Unfortunately, society remains unprejudiced of this abominable crime against women. There are assorted ways of getting women into prostitution that are common to many countries; then there are particular unique methods that vary to a country. Probably, the three most common methods are false employment promises, false marriages, and kidnapping. Globally, trafficking in human beings especially women and children takes place for various activities including prostitution.

DOES THE VICTIM’S CONSENT IS ACTUAL CONSENT?

A study by NHRC and UNIFEM reveals that victims of commercial sexual exploitation are victims of rape.^[5] The scary environment and constant threatening compel the victim to do such acts, but such consent is not actual consent rather are forceful consents. According to Section 375 of IPC, explanation 2, consent must be unequivocal voluntary agreement. The Section further states that a woman who does not physically resist the act of penetration shall not by the reason only of that fact be regarded as consenting to the sexual activity. Recently, in a case where the victim was subjected to a social and psychological hierarchical threat, the court observed that under such a situation conduct on the part of the victim girl of surrendering before the accused, completely on the will of the accused, cannot be construed as consensual acts of sexual intercourse.^[6] Further, Justice PB Suresh Kumar observed that mere act of helpless resignation in the face of inevitable compulsion; non-resistance, quiescence, or passive giving in cannot be deemed to be ‘consent’. When a person is completely powerless, and any form of resistance is futile, she may go into a state of surrender. The system of self-defense shuts down entirely. The helpless person escapes from her situation not by action in the real world but rather by altering her state of consciousness.^[7] Over time the sexual abuse becomes part of the victim’s life. It then gets termed as prostitution and then the abuse compels the act to become consensual.^[8] Hence conclusively it can be said that the consent given by victims of trafficking is not actual consent, and accused/customer should be booked for rape under Section 375 of IPC. Corroborating the same Section 90 of the IPC expressly states that if the accused has reason to believe that the consent was given out of violence, fear, or misconception of fact then such consent is bad in nature. Generally, customers/accused assume consent, but the law says consent must be given and could not be assumed. Contrary to this customers are not considered as offenders under the ITP act,^[9] albeit they are the invisible solicitor of this whole institution.

MODE OF RECRUITING VICTIMS UNDER SUCH RACKETS

Women and children do not usually come to the brothels on their own will, but are brought through very highly systematic, organized and illegal trafficking networks run by experienced individuals who buy, transport, and sell children into prostitution. Traffickers tend to work in groups and children being trafficked often change hands to ensure that neither the trafficker nor the child gets caught during transit. Various groups of traffickers include gang members, police, pimps, and even politicians, all working as a nexus. Trafficking networks are well organized and have linkages both within the country and in the neighboring countries. The role of women in this business is confined to recruitment only, at the brothels. Our law has many effective provisions to deal with trafficking. They are scattered in different statutes like the ITP Act, Juvenile Justice Act, and the IPC. However, due to lack of synergies, these provisions remain underused and in many cases abused.^[10] It is the fundamental right of every Indian citizen not to be trafficked.^[11]

HOW IS THE ACT TURNING HOSTILE TOWARDS THE VICTIM?

1) The women and children who are booked for the offence under this act are firstly arrested as prostitutes; for soliciting prostitution. This is a classic case of the survivor of an offence that ultimately becomes the victim. A trafficked woman must not be victimized under the garb of Section 8 of ITP or any other ancillary provisions of law. When the investigation reveals that she’s a victim of commercial sexual exploitation against her informed consent, the charge sheet must be filed against all her exploiters not only under ITPA but also under other ancillary provisions. Consent obtained under duress, lure, deceit, compulsion, coercion, and force is not ‘consent’ in a strict legal sense.^[12]

2) Illegal raids have forced sex workers to operate in unsafe conditions.^[13] Due to such unnecessary raids, customers are vehemently been opposing coming to red light areas rather they are forcing the sex workers to come to their preferred places which are generally public places. In such a state of affairs, Section 7 gets attracted; thereby getting punished for the same. The very act which was constructed to protect them is itself imprisoning them due to the fault of such illegal raids.

LACUNAE THEREIN

1) Definitional Inconsistency - The most important and the basic loophole found in this Act is that the act does not define the proper definition of the term “trafficking” thus making it unclear the actual offence in the context of trafficking. Moreover, commercial sexual exploitation is not adequately defined in the Act. Secondly, there is a big assumption that prostitution always takes place in brothels which act as a limitation under this Act. Sexual exploitation in private premises, other than a brothel is not covered by this act. In addition to this, with the changing global scenario, commercial sexual activities have taken a diversified form with the activities taking places in residences, hotels, clubs, involving different mobile locations.

2) Treatment of victims as offenders - While prostitution per se is not outlawed in India, all women in prostitution are routinely treated as offenders under ITPA. It is being reflected by the detention of prostitutes in “corrective” homes, implying a contradiction in terms, as it is but obvious that a victim cannot be at the same time an offender.

3) Concerning punishment and its enforcement - There is a constant misuse of the punishment by the police, which is implicated under Section 8 resulting in harassment and punishment of Women in prostitution instead of conviction of perpetrators of trafficking and pimps.

CONCLUSION

The above disquisition reveals that the objective with which the ITP act was brought into the picture has not been achieved, rather is being misused. The distinction of a sex worker from commercial sexual exploitation victims is of utmost importance. In the garb of protecting minors, these workers have witnessed constant harassment from police via illegal raids. The act which was brought to guard them is itself victimizing them. The hatred of society against them is also one of the reasons for harassment by police. It’s high time; there is a strong need of protecting traffic victims against such harassment. Their consent is not even taken into consideration; the biggest culprit is the customers who are taking their service. Such culprits must be booked for rape, but unfortunately, our judiciary has been continuously giving them clean chit on the ground of no penal provision to punish them. There’s a strong need for amendments in the current legislation to penalize not only traffickers but also such customers. Astonishingly, major solicitors are the customer for which this whole institution has been established, but unfortunately taking service is still not penalised.^[14]

 

                                        

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^[1] Panchanan Padhi vs. Panchanan Padhi, BLAPL No. 2612 of 2020.

^[2] Bachpan Bachao Andolan v. Union of India, (2011) 5 SCC 1.

^[3] Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing The United Nations Convention Against Transnational Organized Crime 2000 (10^th July 2020, 11:36PM), https://www.ohchr.org/en/professionalinterest/pages/protocoltraffickinginpersons.aspx.

^[4] Supra Note 2.

^[5] Trafficking in Women and Children in India, Shanker Sen & P.M. Nair (Ed), Orient Longman, 2005 at p. 303.

^[6] Thankappan P.K v. State of Kerala, CRL.A.No. 564 of 2018.

^[7] Judith L. Herman, “Trauma and Recovery: The Aftermath of Violence- from Domestic Abuse to Political Terror” (Basic Books, 1992).

^[8] JS Verma Committee report, p 152.

^[9] Chandru S v. State, Crl. Petition No. 5059 of 2017.

^[10] JS Verma Committee Report, p168.

^[11] Geeta Kancha Tamang vs State of Maharashtra C.A. No. 858 of 2009.

^[12] Asha Bajpai, Child Rights in India: Law, Policy, and Practice (Oxford University Press, 2017).

^[13] Varsha Torgalkar, 'Illegal' Police Raids Have Forced Pune's Sex Workers to Operate in Unsafe Conditions, The Wire (10^th July, 2020, 06:59PM), https://thewire.in/rights/pune-sex-workers-police-raids.

^[14] Sarvan v. State of Karnataka, 2018 SCC OnLine Kar 634.