Trafficking in person

"Trafficking in persons" refers to the illegal trade and exploitation of individuals by force or some sort of deception for unlawful purposes like labour and sexual exploitation. “Trafficking” is a general term that covers all kinds of illegal trade and smuggling. “Trafficking in Person” refers specifically to the illicit trade and exploitation of human beings. Human trafficking is the trade of humans, most commonly for sexual, slavery, forced labor, or commercial sexual exploitation, for the trafficker or others.  The Bharatiya Nyaya Sanhita of 2023 uses the term “trafficking of person” to prescribe the meaning and punishment for this crime. Trafficking in person may be of children, women, or men, and for any unlawful objective such as forced labour, sexual abuse, beggary etc. trafficking. The term “trafficking in person” is used to imply an organized crime. Commonly, the victims become perpetrators in this crime; it is difficult to catch the main perpetrator.    

The Official Definition of the term in India according to legislation

‘Trafficking in person’ as defined in Bharatiya Nyaya Sanhita 2023 (previously the Indian Penal Code or IPC, 1860)

Section 111 (newly added in the new Sanhita) defines Organised Crime as any continuing unlawful activity, kidnapping, robbery, vehicle theft, extortion, land grabbing, contract killing, economic offence, cyber-crimes, trafficking of persons, drugs, weapons or illicit goods or services, human trafficking for prostitution or ransom, committed by individuals or groups acting as part of a crime syndicate, using violence, intimidation, coercion, or unlawful means to obtain material or financial benefits. Punishments include death or life imprisonment and a fine of at least ₹10 lakh if the offence causes death, or a minimum of five years imprisonment (extendable to life) and a fine of at least ₹5 lakh in other cases.  

Trafficking in person is mentioned as a punishable crime in the Bharatiya Nyaya Sanhita, 2023. This definition is inspired by UN Trafficking in person protocol.  Section 143 of the Bharatiya Nyaya Sanhita, 2023 (section 370, IPC 1860) speaks explicitly about the Trafficking of Persons. Trafficking is defined as transporting, harbouring or transferring for exploitation by—

(a) using threats; or

(b) using force, or any other form of coercion; or

(c) by abduction; or

(d) by practising fraud, or deception; or

(e) by abuse of power; or

(f) by inducement, including the giving or receiving of payments or benefits.

According to the Sanhita, exploitation is said to include any act of physical exploitation or any form of sexual exploitation, slavery or practices similar to slavery, servitude, beggary or forced removal of organs. The consent of the victim is considered immaterial in this offence.

Section 143: Punishment for trafficking under the Sanhita (section 370, IPC 1860):

Punishment for the offence of trafficking	Rigorous imprisonment for 7 to 10 years+fine
Trafficking of more than one person	Rigorous imprisonment for at least 10 years, which may extend to life imprisonment + fine
Trafficking of a child	Rigorous imprisonment for at least 10 years, which may extend to life imprisonment + fine
Trafficking of more than one child	Rigorous imprisonment for at least 14 years, which may extend to life imprisonment + fine
Trafficking of child on more than one occasion	Imprisonment for life + fine
Trafficking by a public servant or a police officer	Imprisonment for life + fine

Section 144 (Section 370A of the IPC 1860) addresses the exploitation of a trafficked person. Knowingly engaging with a trafficked person for sexual exploitation in any manner is punishable by rigorous imprisonment of three to seven years with a fine. If such a person is a child, the punishment is five to ten years and a fine. Under Section 145 of the Sanhita (Section 371 of IPC 1860), whoever habitually deals with slaves will be punished with imprisonment and a fine. Also, a compulsion to labour without consent is punishable with imprisonment (up to 1 year), a fine, or both under Section 146 of the BNS 2023 (Section 374 of IPC 1860).

The Constitution of India

The Constitution of India mentions the right to life and personal liberty as fundamental rights of every person under Article 21, which includes protection against exploitation. Secondly, Article 23 of the Constitution explicitly speaks about the prohibition of traffic in human beings and forced labour. Traffic in human beings and beggar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law. The object of the insertion of Article 23 in our Constitution is to disallow the pernicious practice of bonded labour existing in many states. Article 24 states that any child under fourteen should not work in or be exposed to hazardous employment like mines or factories. It protects the rights of several underprivileged and deprived people in the country. Article 39(e) in the Constitution of India says that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength.

Trafficking of Persons (Prevention, Protection, and Rehabilitation) Bill, 2021

The Bill creates a law for the investigation of all types of trafficking, and rescue, protection, and rehabilitation of trafficked victims, and states the definition of “trafficking in person” to be the same as the definition given in the Bharatiya Nyaya Sanhita, 2023. This was a comprehensive Bill that unfortunately lapsed due to the dissolution of the 16th Lok Sabha.

The Official Definition of the term according to conventions and government reports

The UN Trafficking Protocol

More than 180 nations have ratified or acceded to the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons (the UN TIP Protocol), which defines trafficking in persons and contains obligations to prevent and combat the crime. It provides a comprehensive framework for addressing the trafficking of persons internationally and domestically.

Under this definition, a person is guilty of the crime of human trafficking if they satisfy three components: (1) an act (e.g., transportation, or receipt of persons), (2) by a specified means (e.g., threat or use of force or other forms of coercion, abduction, fraud, etc.), (3) resulting in “exploitation,” as defined by the Protocol, as “including, at a minimum, the exploitation of the prostitution of others, or other forms of sexual exploitation, forced labour or services, slavery or similar practices, servitude, or the removal of organs.”

The crime of human trafficking of adult victims therefore consists of at least one such act, a means, and an exploitative purpose. However, for the trafficking of minor child victims, the second requirement (i.e., the “means” requirement) is waived. Therefore, a person is guilty of child trafficking if he or she commits one of the proscribed actions for purposes of exploitation, regardless of the means by which that act is committed. The consent of the victim is irrelevant where any of the means included in the definition has been employed or the victim is a child.

The United Nations Office on Drugs and Crime

“Human Trafficking is the recruitment, transportation, transfer, harbouring or receipt of people through force, fraud or deception, to exploit them for profit.”

The United Nations Human Rights Office of the High Commissioner has, in their “Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women, and Children, supplementing the United Nations Convention against Transnational Organized Crime (New York, 15 November 2000)”, which was adopted at the fifty-fifth session of the General Assembly of the United Nations, and signed by India on 12 December 2002, has defined the term ‘Trafficking in Person’ as—

(a)"Trafficking in persons" shall mean the recruitment, transportation, transfer, harboring, or receipt of persons, by means of the threat or use of force or other forms of coercion, abduction, fraud, deception, abuse of power, or 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;

(b) 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;

(c) 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;

(d) "Child" shall mean any person under eighteen years of age.

The United Nations Commission on Human Rights

“Trafficking in persons means the recruitment, transportation, purchase, sale, transfer, harbouring or receipt of persons: (i) by threat or use of violence, abduction, force, fraud, deception or coercion (including the abuse of authority), or debt bondage, for the purpose of: (ii) placing or holding such person, whether for pay or not, in forced labor or slavery-like practices, in a community other than the one in which such person lived at the time of the original act described in (i)”

Human Rights Standards for Treatment of Trafficked Persons  

A detailed definition covering all the aspects of “Trafficking” was given by ‘Human Rights Standards for Treatment of Trafficked Persons’. “All acts and attempted acts involved in the recruitment, transportation within or across borders, purchase, sale, transfer, receipt or harbouring of a person involving the use of deception, coercion (including the use or threat of force or the abuse of authority) or debt bondage for the purpose of placing or holding such person, whether for pay or not, in involuntary servitude (domestic, sexual or reproductive), in forced or bonded labour, or in slavery-like conditions, in a community other than the one in which such person lived at the time of the original deception, coercion or debt bondage”. The clearly identifiable elements of the crime, to distinguish cases of trafficking from other acts, such as undocumented migration are:

i) acts or attempted acts;

ii) recruitment;

iii) transportation, which can be via legal or illegal channels of migration;

iv) purchase, sale, transfer, receipt, or harbouring of a person;

v) deception, i.e. being tricked into vulnerable situations;

vi) coercion (including the use or threat or force or the abuse of authority;

vii) debt bondage;

viii) servitude (domestic, sexual, or reproductive), in forced or bonded labour, or slavery-like conditions.

ix) Transportation to community other than the one in which such a person lived at the time of the original deception, coercion, or debt bondage.

https://www.mha.gov.in/sites/default/files/2022-12/combatinghumantrafficking_29092022%5B1%5D.pdf

The term as defined in case laws:

It was laid down in 1953 in Raj Bahadur v. State of W.B., that traffic in human beings means to deal in men and women like goods, such as to sell or let or otherwise dispose of. It would include traffic in women and children for immoral or other purposes.

Vishal Jeet v. Union of India

This writ petition under Article 32 of the Constitution of India at the instance of an Advocate was filed by way of a Public Interest Litigation seeking issuance of certain directions, to look into issues of Red Light areas and forced prostitution from a law enforcement perspective; to rescue victims of commercial sexual exploitation and provide them with proper medical aid, shelter, education and training in various disciplines of life. The Supreme Court ordered an objective multi-dimensional study and a searching investigation into the matter relating to the causes and effects of the growing exploitation of young women and children for prostitution and trafficking.  

The Court in its judgment held that State Governments and Union Territories must ensure law enforcement takes prompt action against child prostitution. There should be establishment of Advisory Committees within their respective zones consisting of the Secretary of the Social Welfare Department or Board, the Secretary of the Law Department, sociologists, criminologists, members of the women’s organizations, members of the Indian Council of Child Welfare and Indian Council of Social Welfare to combat this problem.  The Union Government should form a central committee to create welfare programs for rescued children. The committee should propose amendments to existing laws or recommend new laws to prevent child exploitation.

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

This case addressed the issue of human trafficking through inter-country adoptions. The court has laid down procedures to check and monitor inter-country adoptions so that the children don’t end up trafficked.

Bachpan Bachao Andolan v. Union of India & Ors

The Court mandated the prohibition of employing children in circuses, emphasizing the enforcement of their fundamental rights. The Supreme Court also directed the government to conduct raids on all circuses to liberate children and assess violations of their rights. Rescued children were to be placed in Care and Protective Homes until they reached 18 years of age. Instructed the government to develop a comprehensive rehabilitation scheme for rescued children, ensuring their reintegration into society.

Types of “Trafficking in Person”

1. Labour trafficking: It is one of the two primary forms of trafficking in person as recognised by the United States, the other one being Sex Trafficking. The trafficking of a person using fraud, coercion, or duress to exploit him or her for forced labour or services or slavery or practices similar to slavery, including involuntary servitude, peonage, and debt bondage. Forced labor, according to the ILO Forced Labour Convention, 1930 is “all work or service which is exacted from any person under the threat of a penalty and for which the person has not offered himself or herself voluntarily.” Labour trafficking is particularly driven by poverty, which increases vulnerability to trafficking, and by the increased demand for cheap labour and the lack of governance, which in turn facilitates trafficking in persons.
2. Sex trafficking: It is also prevalent within India and predominantly affects women and girls. Sex trafficking is the trafficking of a person using fraud, coercion, or duress to exploit him or her for involuntary commercial sex acts, prostitution of that person, or other forms of sexual exploitation.  If the individual is under the age of eighteen, any commercial sex act is considered trafficking even if there is no force, fraud, or coercion. Sex trafficking, which largely impacts women and girls forced into prostitution, is facilitated by similar factors, as well as the low female-to-male child sex ratio in northern India and the large number of migrant labourers in certain regions of India, which increases the demand for commercial sex workers and also for trafficked brides.
3. Debt Bondage: Debt bondage, also called peonage, debt slavery, or bonded labor, is when someone is forced to pay off a loan by working for an agreed-upon or unclear period for little or no salary. The work performed to pay off the debt greatly exceeds the worth of the initial loan. This is one of the most common ways of trafficking in person. Even today, millions of trafficking victims are working in forced labour conditions to pay off a debt that was inherited from parents, grandparents, and even great-grandparents.
4. Domestic Servitude: Involuntary domestic servitude occurs when a domestic worker becomes ensnared in an exploitative situation that he or she is not free to leave. Domestic workers largely work without contracts in unregulated and unenforced workplaces. Domestic servitude may involve such abuses as confiscation of travel documents, withholding of wages, confinement, no time off, isolation from the community and all family and friends, physical and sexual abuse, degrading treatment, and threats of harm, including the threat of arrest and summary deportation as an undocumented migrant.
5. Child soldiers: Child soldiering is a unique and severe manifestation of trafficking in persons that involves the unlawful recruitment of children through force, fraud, or coercion to be exploited for their labor or to be abused as sex slaves in conflict areas. Government forces, paramilitary organizations, or rebel groups may perpetrate such unlawful practices. UNICEF estimates that more than 300,000 children under 18 are currently being exploited in more than 30 armed conflicts worldwide.
6. Trafficking in persons for organ removal: This is one of the least reported and least understood forms of trafficking – but one that experts believe may be growing. It is “a form of trafficking in which an individual is exploited for their organ, including by coercion, deception and abuse of a position of vulnerability.
7. Forced marriage and human trafficking: Forced marriage can constitute human trafficking in certain cases where the acts done by the perpetrators qualify all the essentials of human trafficking. Forced marriage is a marriage at any age that occurs without the free and full consent of both parties, including anyone under the age of 18 who is not able to give full consent.

State-specific legislation and measures:

Maharashtra has implemented the Maharashtra Control of Organised Crime Act of 1999, which defines “organized crime” and is used in organized human trafficking cases.

Directorate on Child Rights and Trafficking (DCRT) has been set up by Govt. of West Bengal under the aegis of the Department of Women & Child Development & Social Welfare. West Bengal is the first State to have a separate Directorate for addressing violations of child rights issues and child trafficking cases. Being a border state, the West Bengal Human Trafficking Prevention Guidelines focus on cross-border trafficking, especially from Bangladesh and Nepal.

The Punjab Prevention of Human Smuggling Act, 2012 provides for the regulation of the profession of travel agents to check and curb the illegal and fraudulent activities, and malpractices of the persons involved in organized human smuggling in the State of Punjab.

The Karnataka Devadasis (Prohibition of Dedication) Act, 1982 made it illegal to dedicate women as Devadasis in the state of Karnataka. This is an instance where a woman is dedicated to the service of an idol or deity. The act also established provisions for the care, protection, and rehabilitation of women who were previously dedicated as Devadasis.

Appearance of “trafficking in person” in database

National Crime Records Bureau (NCRB): Crime in India 2022 Report

NCRB started collecting data on human trafficking cases from these Anti-Human Trafficking Units across the country in 2016. It has been publishing such data under a separate chapter titled “Human Trafficking”. As per data provided by States/UTs, 2,250 cases of Human Trafficking have been registered by AHTUs of States/UTs during 2022. The highest number of cases have been registered in Telangana (391 cases), Maharashtra (295 cases), and Bihar (260 cases).  The following table shows the: Human Trafficking data published is based on annual data as provided by States/UTs from their Anti Human Trafficking Units.

Reported Number of Human Trafficking Cases based on annual data as provided by States/UTs from their Anti Human Trafficking Units published by the NCRB

Global Law Enforcement Data:

The 2003 reauthorization of the TVPA added to the original law a new requirement that foreign governments provide the Department of State with data on trafficking investigations, prosecutions, convictions, and sentences in order to fully meet the TVPA’s minimum standards for the elimination of trafficking (Tier 1). The 2004 TIP Report collected this data for the first time.

Victims of Trafficking and Violence Protection Act: The TIP Report for number if prosecutions and convictions of human traffickers

Ministry of Home Affairs

Rajya Sabha, the Number of reported cases of human trafficking is given in this table.

State/UT-wise & Gender-wise Number of Victims Trafficked under Human Trafficking during 2017-2019.

Gender-wise compilation of the number of victims trafficked during 2020-2021 as calculated by the Ministry of Home Affairs based on annual data as provided by States/UTs from their Anti Human Trafficking Units.

State-wise reported cases of trafficking in person recorded by the Ministry of Home Affairs, with data given from the ATUs of all states.

The Inter-operable Criminal Justice System (ICJS): Cri-MAC

Data regarding cases of human trafficking in India can be acquired by accessing the Crime Multi Agency Centre (Cri-MAC). It was developed to share timely inputs among various stakeholders involved in law enforcement. It is web-based, improve the digital communication between disjointed units, and runs on a secured network.

The Inter-Operable Criminal Justice System-Crime Multi Agency Centre (Cri-MAC). Data regarding cases of human trafficking in India can be acquired by accessing this portal.

Measures taken by the government to combat trafficking in person

Standard Operating Procedures (SOPs)

A Standard Operating Procedure (SOP) issued by the Ministry of Home Affairs for human trafficking is a step-by-step guide that tells agencies like the police, social workers, and NGOs what to do when they find and help trafficking victims. It ensures everyone follows the same process for identifying, rescuing, and supporting victims, making the response more organized and effective.

Anti-Trafficking Cell (ATC)

Anti-Trafficking Nodal Cell was set up in the Ministry of Home Affairs (MHA) to act as a focal point for communicating various decisions and follow up on action taken by the State Governments to combat the crime of Human Trafficking. MHA conducts coordination meetings periodically with the Nodal Officers of Anti Human Trafficking Units nominated in all States/UTs. MHA has already established an Anti Trafficking Cell (ATC) under the Director (SR) which deals with the following major subject matters:

• All matters pertaining to the criminal aspect of trafficking in human beings especially of women and children.
• To act as the Nodal cell for dealing with the criminal aspect of Human Trafficking in India, and hold regular meetings of all States and UTs.
• To interface with other Ministries like MWCD, MSJE, MEA, MOIA, MOLE, MOL, MOT, and NCRB regarding the criminal aspect of human trafficking.
• All matters relating to the UNODC and UNIFEM in the context of the criminal aspect of Human Trafficking. The Anti Trafficking Nodal Cell of MHA has developed an MIS proforma for the monitoring of the actions taken by various State Governments.

Fast-Track Courts

Fast Track Special Courts (FTSCs) in India are dedicated courts that expedite the trial of sexual offenses, including human trafficking cases. The courts were established to provide immediate relief to victims and reduce the backlog of pending cases.

Advisories

To improve the effectiveness in tackling the crime of human trafficking and to increase the responsiveness of the law enforcement machinery, MHA has issued some comprehensive advisories to all States/UTs.

Anti-Human Trafficking Units (AHTUs)

Trafficking Units (AHTUs) in all districts of States/UTs, hoping to strengthen the law enforcement response against trafficking in persons. They are tasked with investigating Human Trafficking cases and building up a database on such cases including on criminals involved. Rs. 100 crore from the Nirbhaya fund has been allocated for setting up new AHTUs and for strengthening of existing AHTUs. As per data provided by States/UTs, so far 807 AHTUs are functional and 22 States/UTs have achieved their target of setting up AHTUs in all districts.

Other legislations to counter the kinds of exploitation done through trafficking:  

1. The Immoral Traffic (Prevention) Act, 1956 (ITPA)
2. Protection of Children from Sexual offences (POCSO) Act, 2012
3. Prohibition of Child Marriage Act, 2006
4. Transplantation of Human Organs Act, 1994
5. The Punjab Prevention of Human Smuggling Act, 2012)
6. Bonded Labour System (Abolition) Act, 1976
7. Child Labour (Prohibition and Regulation) Act, 1986
8. Juvenile Justice (Care and Protection of Children) Act, 2015
9. Protection of Children from Sexual Offences (POCSO) Act, 2012
10. Prevention of Money Laundering Act (PMLA), 2002
11. Transplantation of Human Organs and Tissues Act, 1994

10. International experiences

• India is a signatory to various international conventions addressing trafficking:
• UN Palermo Protocol: India’s Section 370 (IPC) aligns with the protocol's definition of trafficking. Article 5 of the Protocol requires States to criminalize trafficking, attempted trafficking, and any other intentional participation or organization in a trafficking scheme.
• U.S. Department of State’s Trafficking in Persons (TIP) Report evaluates India every year.
• UN Convention: India has ratified the United Nations Convention on Transnational Organised Crime (UNCTOC) which has as one of its Protocols: The Prevention, Suppression, and Punishment of Trafficking in Persons, particularly Women and Children.
• Universal Declaration of Human Rights (1948): Prohibits slavery and human trafficking.
• ILO Conventions: On forced labor, child labor, and exploitation. ILO Convention No. 182 (Worst Forms of Child Labour), ILO Convention No. 29 (Forced Labour Convention).
• Convention on the Rights of the Child (CRC): Provisions align with India’s laws on child protection.
• SAARC Convention: India has ratified the SAARC Convention on Preventing and Combating Trafficking in Women and Children for Prostitution. A Regional Task Force was constituted to implement the SAARC Convention. Five meetings of Regional Task Force have been held so far.

Research that engages with Trafficking in Person

The 2024 Trafficking in Persons Report: India

The Government of India does not fully meet the minimum standards for the elimination of trafficking but is making significant efforts to do so. India remains in Tier 2 for anti-trafficking, showing overall increased efforts, such as higher prosecutions, convictions of traffickers, and investigations into bonded labor cases. States and union territories hold primary responsibility for anti-trafficking, with central government policy oversight. The government issued multiple advisories to improve inter-state cooperation and address trafficking, and the identification of trafficking victims was reported. The primary shortcomings according to this report are—

• 21 states/UTs did not report identifying bonded labor victims or filing cases under the Bonded Labor System (Abolition) Act.
• Conviction rates for trafficking crimes remained low, weakening deterrence.
• Protection efforts and victim services varied significantly by state, with limited data on assistance or referrals.
• Shelters were poorly audited, and some victims were confined without magistrate orders.
• The central anti-trafficking committee ceased functioning.
• The penal code still does not criminalize all forms of trafficking.
• Lack of accountability for complicit government employees fostered impunity.

The Counter Trafficking Data Collective (CTDC) of the International Organization for Migration

It is the first global data hub on human trafficking, publishing harmonized data from counter-trafficking organizations from around the world. The CTDC dataset up to 2018 highlights differences in how trafficking victims travel. About 80% of international trafficking cases pass through official border checkpoints like airports and land borders. Victims of forced labor are mostly trafficked through these official points, while those trafficked for sexual exploitation often use unofficial routes, such as sea crossings or cross-country paths. Children are also more likely than adults to be trafficked through these unofficial routes.

Increased Use of Technology among Traffickers in Recent Times: Main Challenge to the Way Ahead

Traffickers have integrated technology into their business model at every stage of the process, from recruiting to exploiting victims. One way digital technology and human trafficking can intersect occurs when traffickers use online platforms to exploit victims. Reports from several countries demonstrated drastic increases in online commercial sexual exploitation and sex trafficking, including online sexual exploitation of children (OSEC), and demand for and distribution of child sexual abuse material (CSAM). Traffickers have continued to advance schemes to exploit individuals using digital tools to groom, deceive, control, and exploit victims.

UNODC has identified two types of strategies, “hunting” involving a trafficker actively pursuing a victim, typically on social media and “fishing”, when perpetrators post job advertisements and wait for potential victims to respond. Traffickers can misuse technology to launder or transfer illicit profits. It can also have a positive use in helping to combat trafficking, such as by aiding investigations, enhancing prosecutions, raising awareness, and providing services to victims.

Way ahead

The existing law in India focuses on defining trafficking, identifying human trafficking, and providing severe punishment for human traffickers. All of these are necessary to curb this crime. But the more important aspect is understanding the underlying factors that push people into vulnerable situations and become victims of this crime. The current law fails to incorporate key insights gained by anti-trafficking experts since the adoption of the Palermo Protocol. A more effective approach would be a rights-based strategy that supports safe migration and promotes decent work opportunities to prevent trafficking.