A

Dissertation

On
A STUDY ON ENFORCING SEX TRAFFICKING LAWS IN INDIA

Submitted for Subject

Code LLB 502
X Semester
B.B.A.LL.B

By

SARANSH SINHA
(12517703520)

Supervisor

Mrs. Richa Gupta

Assistant Professor

VIVEKANANDA SCHOOL OF LAW AND LEGAL STUDIES

VIVEKANANDA INSTITUTE OF PROFESSIONAL STUDIES-TC
GGSIP University
 DECLARATION

I hereby declare that the dissertation entitled “A STUDY ON ENFORCING SEX

TRAFFICKING LAWS IN INDIA” is based on original research undertaken by me, and it has not
been submitted to any University for any degree or diploma.

Place: New Delhi

Date:

Saransh Sinha
12517703520
 CERTIFICATE

This is to certify that the dissertation entitled “A STUDY ON ENFORCING SEX

TRAFFICKING LAWS IN INDIA” has been prepared by Mr. Saransh Sinha, a
student of Vivekananda School of Law and Legal Studies, Vivekananda Institute of
Professional Studies – Technical Campus, under my supervision and guidance. I
recommend it for evaluation.

Place: New Delhi

Date:
Mrs. Richa Gupta
Assistant Professor
 ACKNOWLEDGEMENT

Many people helped me along the way while I worked on my dissertation; I am grateful
to each of them for their confidence in me and the faith they placed in me by assisting,
whether directly or indirectly, during the research and study undertaken. Please accept
my sincere gratitude for laying the groundwork for my success and allowing me to join
your esteemed faculty.

I'd like to start by expressing my gratitude to my supervisor for all the help she provided
with my dissertation, and for the immense value I place on her patience, inspiration,
energy, and expertise.

Last but not least, I would also like to thank my family and friends for their tremendous
support throughout my work.
 Table of Contents

DECLARATION.......................................................................................................................

CERTIFICATE.........................................................................................................................

ACKNOWLEDGEMENT ........................................................................................................

LIST OF ABBREVIATIONS...................................................................................................

LIST OF CASES .......................................................................................................................

Chapter 1: INTRODUCTION ............................................................................................... 1

Chapter 2: SEX TRAFFICKING IN INDIA: ROOT CAUSES AND PREVALENCE ... 7

Statistics in India ....................................................................................................................... 8

Geographic Distribution .......................................................................................................... 10

Trafficking Routes in India ..................................................................................................... 12

Demographic Profile ............................................................................................................... 14

Major Causes........................................................................................................................... 15

Chapter 3:LAWS ON SEX TRAFFICKING IN INDIA .................................................. 17

“THE IMMORAL TRAFFIC IN PERSONS (PREVENTION) ACT, 1956- KEY

PROVISIONS” .................................................................................................................... 24

“INDECENT REPRESENTATION OF WOMEN (PROHIBITION) ACT, 1986” ............ 49

“THE INFORMATION TECHNOLOGY ACT, 2000” ...................................................... 49

“THE YOUNG PERSONS (HARMFUL PUBLICATIONS) ACT, 1956” ........................ 52

“MAHARASHTRA CONTROL OF ORGANISED CRIME ACT, 1999”......................... 52

“THE CITIZENSHIP ACT, 1955” ...................................................................................... 53

“THE FOREIGNERS ACT, 1946”...................................................................................... 53

“THE IMMIGRATION (CARRIER’S LIABILITY) ACT, 2000”...................................... 54

 “THE PASSPORT (ENTRY INTO INDIA) ACT, 1920 AND THE PASSPORTS ACT,
1967”.................................................................................................................................... 54

Chapter 4: JUDICIAL PRONOUNCEMENTS ................................................................. 56

Chapter 5: CONCLUSION AND RECOMMENDATIONS ............................................. 74

BIBLIOGRAPHY ................................................................................................................. 81
 LIST OF ABBREVIATIONS

Abbreviation Expansion

AIR All India Record

& And

Anr Another

Cri Criminal

GNCTD govt of NCT of Delhi

Ie. In Essence

NCT NCT

PIL Public Interest Litigation

 LJ Law Journals

LR Law Reports

Ors Others

U/Art Under Art

UN United Nations

UOI UOI

ITPA The Immoral Traffic (Prevention) Act

NCRB National Crime Records Bureau

NHRC National Human Rights Commission

UNCTOC United Nations Convention Against Transnational

Organized Crime

UNODC United Nations Office on Drugs and Crime

SITA The Suppression of Immoral Traffic in Women and
Girls Act

SPO Special Police Officer

TPO Traffic Police Officer

IPC Indian Penal Code

CBI Central Bureau of Investigation

 LIST OF CASES

1. PUDR v. UOI (1982) 3 SCC 235

2. Vishal Jeet v. UOI and others (2016) 2 SCC 610

3. Gaurav Jain v. Union of India (1997) 8 SCC 114

4. Krishnamurthy v. Public Prosecutor (2004) 7 SCC 523

5. Guria, Swayam Sevi Sansthan v. State of Uttar Pradesh (2010) 5 SCC 648

6. Budhadev Karmaskar v. State of West Bengal (2011) 11 SCC 538

7. Delhi Administration v. Ram Singh (2010) 6 SCC 1

8. In Re: Jaydeb Das v. State of Calcutta (2010) 4 SCC 269

9. Prerana v. State of Maharashtra (2019) 6 SCC 559

10. Renu Bansal v. U.T. Chandigarh (2016) 9 SCC 729

11. In Re: Ratnamala (2011) 4 SCC 85

12. Public at Large v. State of Maharashtra (2018) 14 SCC 736

13. State of Kerala v. Pathumma (1978) 2 SCC 1

14. State v. Gaya (1973) 1 SCC 865

15. Laxmi v. The State (2014) 4 SCC 427

16. Bai Shanta v. State of Gujarat (2018) 2 SCC 411

17. Suja Abraham v. State of Maharashtra (2011) 6 SCC 163

18. Savera v. State of Goa and Others (2009) 2 SCC 555

19. Prerana v. State of Maharashtra (2019) 6 SCC 559

 Chapter 1: INTRODUCTION

Introduction

“Sex trafficking is a serious crime that has significant social and economic impacts on
individuals and communities. It is a global issue that affects individuals of all ages and
genders, with women and children being the most vulnerable.1 India is a country that is
highly affected by this crime, with thousands of women and children being trafficked
each year. The Indian legal framework provides a comprehensive set of laws to combat
sex trafficking. “The Immoral Traffic (Prevention) Act, 1956”2, is the primary
legislation that criminalizes trafficking for sexual exploitation. The law provides for the
punishment of traffickers, pimps, brothel owners, and customers. The law also provides
for the rehabilitation and protection of victims. Despite the existence of a robust legal
framework, the implementation of the law remains a challenge. The lack of awareness
among law enforcement agencies, corruption, and bureaucratic delays are some of the
factors that hinder the effective implementation of the law. The judiciary also faces
challenges in delivering timely justice to victims, and the process of legal proceedings
can be lengthy and arduous.3”

“The purpose of this dissertation is to conduct a socio-legal analysis of sex trafficking

in India, with a focus on the legal framework governing the crime. The study will
examine the various dimensions of the issue, including its causes, the profile of
victims and traffickers, and the effectiveness of the existing legal framework. The
study will also explore the measures needed to strengthen the legal mechanisms to
combat trafficking. This dissertation will begin with a discussion on the background
and context of sex trafficking in India. The chapter will provide an overview of the
history of sex trafficking in India, including its roots in the caste system and the
practice of Devadasi. The chapter will also examine the social and economic factors
that contribute to the prevalence of sex trafficking in India.”

1 "Understanding Sex Trafficking: A Global Perspective" by Laura J. Lederer and Christopher A. Wetzel.
2 Act No. 104 of 1956
3 "Human Trafficking in India: A Literature Review" by Suman Nath and Abhijit Das.

1
 “The dissertation will then focus on the legal framework governing sex trafficking in
India. “The Immoral Traffic (Prevention) Act, 1956,” will be analyzed in detail,
including its strengths and weaknesses. The study will examine the challenges faced in
implementing the law, including the lack of awareness among law enforcement
agencies and the delays in the judicial process. The study will also explore the measures
needed to strengthen the legal mechanisms to combat trafficking, including the need for
better coordination among law enforcement agencies and the need for the judiciary to
deliver timely justice to victims. Overall, this dissertation aims to provide a
comprehensive analysis of sex trafficking in India and the legal framework governing
the crime. The study will contribute to the understanding of the issue and provide
recommendations for strengthening the legal mechanisms to combat trafficking.”

Statement of Problem

“The problem of sex trafficking in India is a significant socio-legal issue that needs
urgent attention. India is one of the largest source, transit, and destination countries for
trafficking in persons, including women and children who are subjected to commercial
sexual exploitation. Despite the existence of numerous laws and policies to tackle this
issue, sex trafficking remains a persistent problem in India, with the number of victims
increasing every year. The primary problem is the lack of implementation and
enforcement of laws related to trafficking. There are several gaps in the legal framework
that hinder the effective implementation of the laws. The lack of awareness about the
issue among the public and law enforcement agencies, corruption, and inadequate
resources allocated to anti-trafficking efforts are some of the challenges faced by the
government. Another problem is the root causes of trafficking, such as poverty, gender
discrimination, lack of education, and social norms that perpetuate the objectification
and commodification of women and girls. These factors make them vulnerable to
exploitation by traffickers. The current legal framework focuses on the punishment of
the traffickers, but it does not address the root causes of trafficking or provide adequate
support to the victims. Furthermore, the issue of sex trafficking in India is complex and
multifaceted, and it involves various stakeholders, including the government, law
enforcement agencies, NGOs, and the victims themselves.”

2
“The lack of coordination and collaboration among these stakeholders is another
problem that affects the effectiveness of the anti-trafficking efforts. The impact of sex
trafficking on the victims is devastating, and it includes physical, emotional, and
psychological trauma, and social stigma. The victims face difficulties in accessing
justice and rehabilitation services, and they often suffer from re-victimization and
discrimination. Overall, the problem of sex trafficking in India is a complex issue that
requires a multi- pronged approach to address the root causes, improve implementation
and enforcement of laws, and provide adequate support to the victims. This
dissertation aims to provide a socio-legal analysis of the issue and proposes
recommendations for effective anti- trafficking efforts.”

Research Questions

⚫ “How do socio-economic factors increase the vulnerability of women and

children to sex trafficking in India?
⚫ What are the challenges in implementing the “Immoral Traffic (Prevention) Act,
1956”, and how can they be addressed?
⚫ What measures are needed to strengthen the legal framework, coordination among
law enforcement agencies, and rehabilitation and support services to combat sex
trafficking in India”

Hypothesis

⚫ “Socio-economic factors such as poverty, lack of education, and unemployment

increase the vulnerability of women and children to sex trafficking in India.
⚫ “The Immoral Traffic (Prevention) Act, 1956”, provides a robust legal framework
to combat sex trafficking in India. However, challenges in the implementation of
the law, such as corruption and bureaucratic delays, hinder the effective
prosecution of traffickers.
⚫ Effective measures to combat sex trafficking in India require a comprehensive
approach that involves the strengthening of the legal framework, better
coordination among law enforcement agencies, and the provision of rehabilitation
and support services for victims.”

3
Literature Review

⚫ "Human Trafficking in India: A Literature Review" by Suman Nath and Abhijit

Das: This article provides a comprehensive overview of the nature, causes, and
consequences of human trafficking in India, drawing on various secondary sources.
The authors highlight the need for effective policy interventions to combat the
problem.
⚫ "The Political Economy of Trafficking in Persons: The Example of India" by
Siddharth Kara: This book examines the political and economic factors that
underpin human trafficking in India, particularly in the context of globalization and
neoliberalism. The author argues that the problem cannot be solved without
addressing systemic inequalities and structural violence.
⚫ "Human Trafficking in India: Legal Framework and Judicial Response" by Alok
Kumar Rai: This article provides an overview of the legal framework for combating
human trafficking in India, including the relevant domestic laws and international
conventions. The author also examines the role of the judiciary in addressing the
problem, highlighting the need for greater judicial activism.
⚫ "Trafficking in Persons Report 2020" by the United States Department of State:
This report provides an overview of the global problem of human trafficking,
including a country-specific analysis of India. The report highlights the need for
greater government efforts to combat trafficking, particularly in terms of
prevention, protection, and prosecution.
⚫ "Sex Trafficking in India: An Analysis of the Dynamics of Exploitation and
Trafficking in Women and Children" by Nalini Nayak: This book examines the
various forms of sex trafficking in India, focusing on the socio-economic and
cultural factors that contribute to the problem. The author argues that an effective
response to trafficking must be grounded in a deeper understanding of the root
causes.
⚫ "Trafficking of Women and Children in India: Nature, Dimensions and Strategies
for Prevention" by Radhika Coomaraswamy: This article provides an overview of
the nature and extent of human trafficking in India, particularly in relation to
women and children.

4
⚫ The author examines the various legal and policy interventions that have been
implemented to combat the problem, highlighting the need for a more
comprehensive and integrated approach.
⚫ "Trafficking for Prostitution in India" by Prabha Kotiswaran: This book examines
the dynamics of trafficking for prostitution in India, particularly in relation to the
legal and regulatory framework. The author argues that the criminalization of
prostitution has contributed to the problem of trafficking, and calls for a more
rights-based approach to sex work.
⚫ "Human Trafficking in India: An Overview" by Rani Dhavan Shankardass: This
article provides an overview of the problem of human trafficking in India,
highlighting the various forms of trafficking and the factors that contribute to the
problem. The author argues that effective prevention and intervention strategies
must be grounded in a human rights-based approach.
⚫ "Combating Trafficking of Women and Children in India: A Legal Analysis" by
Mamta Rao: This article provides a legal analysis of the various domestic and
international legal frameworks that are relevant to combating trafficking in India.
The author examines the strengths and weaknesses of the existing legal framework,
and highlights the need for greater government action and public awareness.
⚫ "Sex Trafficking in India: An Empirical Study" by Bharati Basu: This book
presents the findings of an empirical study on the nature and extent of sex
trafficking in India, drawing on interviews with trafficked women and girls. The
author examines the various forms of exploitation and abuse that are associated
with trafficking, and highlights the need for more effective prevention and
rehabilitation strategies.

Limitations

“The study will provide a comprehensive socio-legal analysis of sex trafficking in

India, encompassing an in-depth analysis of the legal framework governing this issue,
including the Immoral Traffic (Prevention) Act, 1956, and relevant provisions of the
Indian Constitution. The study will examine the causes and dimensions of sex
trafficking in India, including the profile of victims and traffickers. Additionally, the
study will explore the challenges faced in the implementation of the legal framework,

5
such as corruption and bureaucratic delays, and provide recommendations to strengthen
the legal mechanisms to combat trafficking. The scope of this study will be limited to
sex trafficking and will not cover other forms of trafficking or other aspects of the
broader issue of human trafficking in India.”

Tentative Chapterization

Chapter 1: Introduction
Chapter 2: Sex Trafficking in India: Root Causes and Prevalence
Chapter 3: Laws on Sex Trafficking in India
Chapter 4: Judicial Pronouncements
Chapter 5: Conclusion and Recommendation

6
Chapter 2: SEX TRAFFICKING IN INDIA: ROOT CAUSES AND
PREVALENCE

“No nation is immune to the scourge of sex trafficking; it has an impact on nations of
all economic, historical, and political backgrounds. Due to the huge earnings and
demand for commercial sex and cheap labour, human traffickers have established a
worldwide market for the sale in human beings. There are 161 countries where
trafficking is a problem. The most common reason for human trafficking is to exploit
victims for sexual labour. It's a dangerous profession, but the traffickers have built up
such a global network that the police force is unable to crack down on them. If there is
a market for sexual slavery, traffickers will find a way to meet that need, even if it
means preying on the most vulnerable members of society who will fall for the lies and
false promises used to lure them in. There are currently 12.3 million adults and
children working as slaves or being forced into prostitution. The rate of human
trafficking victims per one thousand people is 1.8 globally and 3.0 in Asia and the
Pacific. The majority of the 12.3 million victims of human trafficking are girls and
women (56%).4“The United Nations Protocol to Prevent, Suppress, and Punish
Trafficking in Persons, 2000” has not resulted in a single trafficking conviction in 62
nations, while in 104 countries no such laws or regulations exist.4 Victims are sold
both domestically and internationally. People who are displaced from their homes or
who are migrants are especially at risk.”

4 Human Trafficking in India: A Literature Review" by Suman Nath and Abhijit Das.

7
“Human trafficking is estimated to be worth $32 billion per year worldwide.5 That's an
annual amount of 32 billion dollars that is exchanged without paying taxes anywhere
in the world (over 15 million dollars coming from industrialised countries). Since so
many people are being taken advantage of and so much money is being utilised
dishonestly, this is an issue that touches everyone.”

Statistics in India

“Sex trafficking is a global problem that affects millions of people, with India being
one of the countries with the highest prevalence rates. Estimating the number of
victims of sex trafficking in India is challenging due to several factors, including the
illegal and hidden nature of the crime, the lack of comprehensive data collection
systems, and the reluctance of victims to come forward and report their exploitation.

In 2016, 8,132 incidents of human trafficking were reported in India, with 5,493 of
those incidents including sex trafficking, as reported by the National Crime Records
Bureau (NCRB). The true number of victims is almost certainly far higher than the
figure reported above. Several research efforts have tried to quantify the scale of sex
trafficking in India.

⚫ In 2018, “the National Human Rights Commission (NHRC)” reported that between
20 and 30 million people in India were victims of human trafficking.

⚫ In 2017, the “International Labor Organization” published a research estimating

that 1.5 million Indians were victims of sex trafficking.

⚫ Trafficking for sexual exploitation is the most common kind of trafficking in India,
according to “the UNODC's Global Report on Trafficking in Persons 2020”. India
is among the top 10 countries of origin for trafficking victims.

5 Braimah TS, “Sex Trafficking in Edo State: Causes and Solutions” [2013] SSRN Electronic Journal
<http://dx.doi.org/10.2139/ssrn.2273039>

8
⚫ The victims of sex trafficking and other forms of modern slavery are in the tens of
millions in India, according to the “2018 Global Slavery Index”.”

It is also important to note that:

⚫ The majority of sex trafficking victims in India are women and children. According
to the NHRC, 55-60% of sex trafficking victims in India are minors, and 60-70%
are from socially and economically disadvantaged backgrounds.

⚫ Many sex trafficking victims in India are trafficked within the country, with the
most common destinations being major cities such as Mumbai, Kolkata, and Delhi.

⚫ A significant proportion of sex trafficking victims in India are from Nepal and
Bangladesh, who are trafficked across the border into India.

⚫ The COVID-19 pandemic has worsened the situation of sex trafficking in India,
with reports of increased trafficking due to economic hardship and decreased law
enforcement activities.
“However, these estimates are based on various assumptions and extrapolations, and
there is a need for more accurate and reliable data on the number of victims of sex
trafficking in India. One of the challenges in estimating the number of victims is the
lack of a standardized definition of sex trafficking, which can lead to inconsistencies in
data collection and reporting. Another challenge is the reluctance of victims to come
forward and report their exploitation, due to fear of reprisals from traffickers or lack of
trust in the authorities. Moreover, victims may not self-identify as victims of sex
trafficking, which can further complicate data collection efforts.6

In conclusion, estimating the number of victims of sex trafficking in India is a complex

and challenging task, but it is essential for designing effective prevention and
intervention programs. Further research is needed to develop accurate and reliable
estimates of the prevalence of sex trafficking in India, and to address the challenges in
data collection and reporting.”

6 "Understanding Sex Trafficking: A Global Perspective" by Laura J. Lederer and Christopher A. Wetzel.

9
Geographic Distribution

“Sex trafficking is a pervasive problem in India, affecting millions of women and

children every year. While sex trafficking is prevalent throughout the country, the
geographic distribution of trafficking varies across different regions and states.
One of the challenges in understanding the geographic distribution of sex trafficking in
India is the lack of reliable data. Many victims do not report their exploitation due to
fear of retaliation from traffickers or lack of trust in the authorities. Additionally, the
illegal and hidden nature of sex trafficking makes it difficult to track and identify
victims. Despite these challenges, several studies have attempted to analyze the
geographic distribution of sex trafficking in India. One study found that sex trafficking
is prevalent in all parts of India, with the highest incidence in states such as West
Bengal, Andhra Pradesh, and Maharashtra. Another study identified several districts in
Bihar, Jharkhand, and Uttar Pradesh as having a high incidence of sex trafficking.

The factors contributing to the prevalence of sex trafficking can vary by region and
state. For example, border regions such as West Bengal may have higher rates of
trafficking due to their proximity to other countries and the ease of transporting victims
across borders. Poverty and lack of education and employment opportunities are also
contributing factors, particularly in rural areas.”

“Major cities such as Mumbai, Kolkata, and Delhi are hubs for sex trafficking, as they
provide a large pool of vulnerable populations, including migrants, homeless
individuals, and those living in poverty. Red-light districts in these cities are known for
their high incidence of sex trafficking, as they provide a ready market for traffickers to
exploit victims. In contrast, states such as Kerala and Tamil Nadu have lower rates of
sex trafficking due to higher levels of economic development and stronger law
enforcement structures. However, these states are not immune to sex trafficking, and
cases of trafficking still occur in these states, particularly in tourist areas. There are
several studies substantiating the claims and some of them are given below:

10
⚫ "Trafficking in Persons in South Asia: A Review, International Organization for
Migration (2012)”
The study found that sex trafficking is prevalent in all parts of India, but particularly
high in states such as West Bengal, Andhra Pradesh, and Maharashtra. The authors note
that factors such as poverty, lack of education, and lack of employment opportunities
contribute to the prevalence of trafficking in these regions.
⚫ "Trafficking in Persons: A Rapid Assessment Study for South Asia, United Nations
Office on Drugs and Crime (2009)”
This study identified several districts in Bihar, Jharkhand, and Uttar Pradesh as having
a high incidence of sex trafficking. The authors note that these regions have high levels
of poverty and illiteracy, which make individuals vulnerable to trafficking.
⚫ "Mapping of Hotspots of Trafficking and Child Marriage in India, National
Commission for Protection of Child Rights (2018)”
This study identified several hotspots of trafficking in India, including West Bengal,
Jharkhand, Odisha, Bihar, and Chhattisgarh. The authors note that poverty, lack of
education, and inadequate law enforcement are contributing factors to the prevalence
of trafficking in these regions.
⚫ "Human Trafficking in India: A Focus on Women and Children, National Human
Rights Commission (2011)”
This study found that sex trafficking is prevalent in all parts of India, with a particularly
high incidence in states such as Uttar Pradesh, Bihar, and West Bengal. The authors
note that trafficking is often linked to poverty, lack of education, and discrimination
against women and girls.
⚫ "Trafficking of Children for Commercial Sexual Exploitation: A Rapid Assessment
in Four Selected Cities in India, UNICEF (2009)”
This study found that trafficking of children for sexual exploitation is prevalent in
several cities in India, including Mumbai, Kolkata, and Delhi. The authors note that
poverty, lack of education, and inadequate law enforcement are contributing factors to
the prevalence of trafficking in these cities.
⚫ "Trafficking for Sexual Exploitation: An Analysis of Cases Investigated in
Mumbai, Prayas (2011)”
This study analyzed cases of trafficking for sexual exploitation that were investigated
in Mumbai between 2005 and 2009. The authors found that most victims came from
poor backgrounds and were trafficked to other parts of India or abroad.”

11
“The study highlights the need for stronger law enforcement and victim support
services to combat trafficking in Mumbai.

⚫ "Trafficking of Women and Children in India: A Study of Prostitution and Sex

Work, National Commission for Women (2017)”
This study found that sex trafficking is prevalent in several states in India, including
West Bengal, Maharashtra, and Andhra Pradesh. The authors note that poverty, lack of
education, and social and cultural factors contribute to the prevalence of trafficking in
these regions.
⚫ "Human Trafficking in India: A Study of Labour Trafficking and Debt Bondage,
Centre for the Study of Developing Societies (2014)”
This study found that trafficking for forced labor is prevalent in several states in India,
including Uttar Pradesh, Bihar, and Jharkhand. The authors note that poverty, lack of
education, and debt bondage are contributing factors to the prevalence of trafficking for
forced labor in these regions.
⚫ "Sex Trafficking in India: An Analysis of Cases Handled by NGOs, International
Journal of Humanities and Social Science Research (2019)”
This study analyzed cases of sex trafficking handled by NGOs in several states in India,
including West Bengal, Uttar Pradesh, Maharashtra, and Delhi. The authors found that
most victims were women and children from poor backgrounds, and that trafficking
was often linked to poverty, lack of education, and family or social pressures. The study
also highlights the need for better coordination among law enforcement agencies,
NGOs, and other stakeholders to combat sex trafficking in India.”

Trafficking Routes in India

“The majority of human trafficking occurs across international borders, as well as in

intra- and inter-continental trade between nations that are close in proximity. The
general consensus is that migration from rural to urban areas occurs more frequently
in more developed regions, in nations with economic and social issues, or in countries
with these issues.

However, some reports include include places of collection and distribution in their
breakdown of routes. Therefore, countries are classified as sending, transiting, or
receiving countries in order to better organize the flow of goods. If you're looking for
a place to start or finish your journey, India is a great choice.”

12
“Indian trafficking victims come mainly from Nepal and Bangladesh.The number of
legal Bangladeshi migrants to India is significantly smaller than the number of
unauthorized Bangladeshi immigrants. The worldwide community's fight against
organized crime took a giant stride forward with the implementation of the UNTOC
Convention and Protocols. Human trafficking is defined for the first time in detail in
the Protocol. Several countries have enacted legislation enforcing the Protocols'
prohibitions on this practice. India adopted the Trafficking Protocol and the UNTOC
in 2011 to reaffirm its commitment to preventing and controlling human trafficking.
As part of a Global Project, UNODC is working with the European Union to "promote
implementation of the Protocol to Prevent, Suppress and Punish Persons Trafficking,
Particularly Women and Children (Trafficking Protocol) and the Protocol against
Smuggling of Migrants By Land Sea And Air" both of which supplement UNTOC.
“In many nations, it is thought that there is a dearth of support and protection for
victims of human trafficking. Similar to this, many countries do not fully acknowledge
the necessity of protecting the rights of survivors of human trafficking and exempting
them from criminal punishment, as stipulated in the Trafficking Protocol.””

“105 passports found in an unclaimed bag at India Gandhi International Airport on

January 2, 2011, led to the arrest of a human trafficking ring in the Indian capital,
Delhi. The Delhi Police recently received the opened luggage from the airport's
Customs Department, which had been there since it arrived in 2011 months earlier.
The four were involved in a scheme to smuggle people into the US without their
consent. Since 2011, the gang has illegally brought more than 1,000 Indians to the US
through a unique path. These people gathered in Delhi, flew to Istanbul, then went on
foot via Mexico's jungles to Guatemala, where they crossed the border into the US via
Guatemala's jungles. “As much as Rs.6- 12 lakhs and Rs.25-30 lakhs were charged
by the human trafficking network operating in more than five states (Delhi, Gujarat,
Punjab, Andhra Pradesh, Mumbai) to facilitate admission into Guatemala, as well as
the US. A large number of young people, mainly from Punjab and Gujarat, were eager
to make transactions with the brokers between the ages of 18-30.””

13
Demographic Profile

“The demographic profile of sex trafficking victims in India is largely characterized

by gender, age, and region. According to various studies, women and children make up
the majority of sex trafficking victims in India, with some estimates suggesting that as
many as 90% of all trafficking victims are female. In terms of age, most victims are
between the ages of 14 and 25, although younger and older victims have also been
identified. The region of origin also plays a significant role in the demographic profile
of sex trafficking victims in India, with victims being disproportionately drawn from
certain states such as West Bengal, Bihar, Jharkhand, and Assam. The socio- economic
profile of sex trafficking victims in India is closely linked to poverty and lack of
education. Studies have shown that a large proportion of trafficking victims come
from poor families and are often lured into trafficking through false promises of
employment or marriage. Many victims also have limited access to education, which
7
makes them vulnerable to trafficking. Other factors that have been linked to the
socio-economic profile of sex trafficking victims in India include caste, religion, and
ethnicity. Several case studies and surveys have been conducted to explore the
demographic and socio- economic profiles of sex trafficking victims in India. Here are
some of the most significant ones:”
⚫ "Trafficking in Women and Children in India: Nature, Dimensions and Strategies
for Prevention, National Human Rights Commission (2004)”
“This report provides a comprehensive overview of sex trafficking in India, including
its demographic and socio-economic dimensions. It highlights the importance of
addressing the root causes of trafficking, such as poverty, unemployment, and lack of
education.”
⚫ "National Study on Child Trafficking in India, Ministry of Women and Child
Development (2007)”

7 Braimah TS, “Sex Trafficking in Edo State: Causes and Solutions” [2013] SSRN Electronic Journal
<http://dx.doi.org/10.2139/ssrn.2273039>

14
“This study provides detailed information on the demographic and socio-economic
profiles of child trafficking victims in India. It also sheds light on the factors that
contribute to trafficking, such as migration, poverty, and gender discrimination.”
⚫ "Trafficking of Women and Children in India, National Human Rights
Commission (2012)”
This report provides an update on the state of sex trafficking in India, including the
demographic and socio-economic profiles of victims. It also highlights the challenges
in combating trafficking, such as lack of coordination between law enforcement
agencies and inadequate support for victims.
⚫ "Trafficking in Persons: India Country Report, United Nations Office on Drugs and
Crime (2018)”
This report provides a comprehensive analysis of sex trafficking in India, including its
demographic and socio-economic dimensions. It also examines the legal framework for
combating trafficking and makes recommendations for improving prevention and
response measures.

Major Causes

⚫ Poverty

“Poverty is one of the main root causes of sex trafficking in India. Many women and
children who are trafficked come from poor families, and are lured by promises of better
jobs and higher wages. Poverty also makes it difficult for families to protect their
children, and many are forced to send their children away in order to make ends meet.
Lack of economic opportunities and social safety nets also make women and children
vulnerable to trafficking.”
⚫ Gender Inequality:

“Gender inequality is another major root cause of sex trafficking in India. Women and
girls are often discriminated against in Indian society, and are not given the same
opportunities as men. This makes them more vulnerable to trafficking, as they are often
forced into low-paying jobs or exploited for sexual purposes. Gender-based violence,
including sexual violence, also contributes to the problem, as many women and girls
are forced into trafficking through violence and coercion.”

15
⚫ Lack of Education
“Lack of education is another contributing factor to sex trafficking in India. Many
women and children who are trafficked come from families with little or no education,
and are not aware of the dangers of trafficking. Lack of education also makes it
difficult for women and children to find legitimate employment opportunities, making
them more vulnerable to trafficking.”
⚫ Social Stigma

“Social stigma is another root cause of sex trafficking in India. Women and children
who are trafficked are often stigmatized by society, and are seen as being “impure” or
“dirty”. This stigma makes it difficult for victims to reintegrate into society once they
have been rescued, and often leads to further exploitation and abuse.”
⚫ Organized Crime
“Organized crime is another key root cause of sex trafficking in India. Trafficking
networks are often controlled by organized crime syndicates, who profit from the
exploitation of women and children. These networks are highly organized, and use
sophisticated methods to recruit, transport, and exploit their victims.”
⚫ Cultural Factors
“Cultural factors also play a role in sex trafficking in India. The prevalence of dowry
practices, for example, can make it more difficult for families to protect their daughters,
as they may be seen as a financial burden. The persistence of caste-based discrimination
and social hierarchies also contributes to the problem, as women from lower castes are
often more vulnerable to trafficking.”
⚫ Migration:

“Migration is another contributing factor to sex trafficking in India. Many women and
children who are trafficked come from rural areas, and migrate to urban areas in search
of work. However, once they arrive in the city, they often find themselves trapped in
exploitative situations, such as domestic servitude or the sex trade.”
⚫ Political Instability:

“Political instability is also a contributing factor to sex trafficking in India. Conflict

and instability can disrupt social and economic systems, making women and children
more vulnerable to trafficking. In addition, corruption and weak governance can make
it difficult to enforce anti-trafficking laws and protect victims.”

16
 Chapter 3:LAWS ON SEX TRAFFICKING IN INDIA

Women and children who are trafficked for sexual exploitation are protected under
several articles of the Indian Constitution, which date back to 1950.

Fundamental Rights

“In the preamble to India's Constitution from 1950, the country's leaders made a
commitment to protect its people's civil liberties, economic security, and “fraternity and
dignity.” Every instance of human trafficking against a citizen constitutes a violation
of this solemn promise. The fundamental rights part of India's Constitution contains a
strong obligation for India to prohibit and combat trafficking in persons. Article 23
makes it explicitly prohibited to engage in human trafficking for whatever reason. This
basic freedom can be enforced in court. The constitutional restriction will be enforced
through legislation as envisioned in Article 23. This clause will include all forms of
devadasis and other forms of sexual exploitation for economic purposes.8”

“All “persons” in India have the right to life and freedom under Article 21 of the
country's constitution. The Indian judiciary, especially in the post-Maneka era, has
given a positive interpretation to the article, which appears to be written in negative
language. A “quality of life,” “a life with dignity,” and “not simple animal existence”
are all things that have been interpreted as part of the right to life. Everyone, whether
a citizen or not, has access to this basic freedom.”

8 MAHMOOD F and AHMED W, “THE ILLICIT BUSINESS OF SEX, LABOR, AND ORGANS,
AND LAWS ADDRESSING TO IT: A STUDY ON HUMAN TRAFFICKING IN INDIA” [2021]
journal of Original Studies 21 <http://dx.doi.org/10.47243/jos.2.1.03>

17
“Therefore, it is a violation of article 21 to deny victims of human trafficking and
commercial sexual exploitation the right to a life free from want or shame. The victims
of human trafficking and commercial sexual exploitation are typically treated as
inferiors. The right to “equality before the law or equal protection of laws” granted to
all “persons” in article 14 is violated. Sex- based discrimination is expressly forbidden
under Article 15.1. Article 15(3) grants the state the authority to take proactive
measures to provide for the unique needs of women and children. The prohibition of
sex-based discrimination in terms of public employment and the requirement of equal
opportunity for all are found in Article 16. All children between the ages of 6 and 14 are
entitled to free and mandatory schooling. Under no circumstances may a youngster
under the age of fourteen be employed in a potentially dangerous occupation. Even these
fundamental rights of the juvenile victims of trafficking and commercial sexual
exploitation are violated as the average age of victims decreases due to the HIV-AIDS
panic and many sexual fallacies that are popular. Article 32 guarantees that anyone who
believes his or her fundamental rights have been violated may seek redress in the
Supreme Court. The High Courts have concurrent writ jurisdiction pursuant to Article
226. Articles 32 and 226 are written in such a way that courts can shape existing
remedies or create entirely new ones as they see fit in order to ensure that citizens' rights
are upheld. The courts have used this authority to compensate victims of state or police
abuse of their constitutional rights. Damages granted under writ jurisdiction are in
addition to any money that would be won in a regular lawsuit.”

Directive Principles of State Policy

“The progressive ideals of the Constitution's authors are mirrored in the Constitution's
directive principles of state policy, which place legal duties on the government to ensure
equality and end prejudice. Some of these tenets address trafficking's foundational
issues, such as inequality and poverty. It is made explicit in Article 37 that directive
principles cannot be enforced in court against the state, unlike the fundamental rights.
It has been decided by the Supreme Court that, due to article 37, it may be impossible
for the Court to actively implement the directive principles by requiring the state to
follow them in the formulation of laws.”

18
“These values are "essential in the governance of the country" and are therefore
binding on all three levels of government; nevertheless, the Court can prevent the state
from breaching its duty by acting counter to these principles.9 As a result, the
importance of directive principles in Indian law has only increased over time. They are
now more than just guidelines for governmental policy; they are an extension of and
supplement to people's basic liberties. According to Article 39, the government must
ensure that its citizens, both men and women, have access to sufficient means of
subsistence. Therefore, the government should enact regulations to prevent victims
and their families from resorting to human trafficking and commercial sexual
exploitation as a means of subsistence. 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,"
and that "children are given opportunities and facilities to develop in a healthy manner
and in conditions of freedom and dignity," and that "childhood and youth are protected
against exploitation and against moral and material abandonment," is also important.
Thus, victims shouldn't be compelled to give in to traffickers out of financial
desperation. Children shouldn't have their innocence exploited to feed the appetites of
the predators or further their own nefarious goals. State institutions must be guided by
the principles of social, economic, and political fairness, as stated in Article 38. It also
mandates that the government "minimise the inequalities in income, and attempt to
remove inequalities in status, facilities, and opportunities amongst individuals and
groups of people dwelling in different places or engaged in different vocations." In
order to ensure fair and humane working conditions, as well as maternity benefits, the
state is obligated to do so under Article 42. Many victims fall prey to human
trafficking and sexual exploitation because of economic hardship and limited job
prospects. Even if prostitution is classified as "sex work" for hire, the state must still
ensure decent working conditions, including maternity leave, for those who engage in
it. Article 39A mandates that the State provide free legal aid to ensure that no citizen
is denied access to justice due to economic or other disabilities.”

9 "Understanding Sex Trafficking: A Global Perspective" by Laura J. Lederer and Christopher A. Wetzel.

19
“Within the bounds of its economic capacity and progress, the state shall make
necessary measures for protecting the right to work, to education, and to public
assistance in the event of unemployment, old age, illness, disability, or other cases of
unjustified want. In particular, Article 43 mandates that the state promote cottage
businesses on an individual or cooperative basis in rural areas to help people make ends
meet and let them to make the most of their free time, social lives, and cultural pursuits.
The evolution of Indian legislation regarding human trafficking has always been
influenced by international law, particularly in the post-colonial era. International law
and cooperation are essential in the fight against this danger since human trafficking
has been recognised as a global organised crime. Article 51 requires the government to
encourage adherence to treaty and international law commitments. Treaties signed by
countries do not immediately become binding in India. It may be necessary to make
appropriate changes to national laws in order to comply with international
commitments. Even if it conflicts with international law, domestic law must be
followed. However, in most cases, Indian courts interpret laws so that they are
consistent with international norms.10”

Fundamental Duties -Part IVA

“Every Indian citizen has an inherent responsibility to uphold the Constitution, respect
its objectives, and reject behaviours that undermine women's equality and worth.
Fundamental responsibilities are, by definition, societal obligations. Every individual
who engages in human trafficking is in violation of this sacred obligation. A parent or
guardian's primary responsibility is to ensure that his or her child or ward, between the
ages of six and fourteen, has access to quality educational options.11Instead, often they
are the ones who are compelled by circumstances to push these young children in the
net of traffickers. Fundamental duties cannot be imposed through writs.”

10 MAHMOOD F and AHMED W, “THE ILLICIT BUSINESS OF SEX, LABOR, AND ORGANS,
AND LAWS ADDRESSING TO IT: A STUDY ON HUMAN TRAFFICKING IN INDIA” [2021]
journal of Original Studies 21
<http://dx.doi.org/10.47243/jos.2.1.03>
11 "Human Trafficking in India: A Literature Review" by Suman Nath and Abhijit Das.

20
Statutory journey

“Prior to 1956, there was no Central law exclusively dealing with sex work in India.
Various state-specific laws dealt with the issue. “The Suppression of Immoral Traffic
in Women and Girls Act, 1956” was the first Central law dealing with sex work in India.
It was enacted not because of any ‘independent, sustained, consolidated mass
movement in the country’, but because of India’s obligation as a signatory to the
“United Nations International Convention for the Suppression of Traffic in Persons and
of the Exploitation of the Prostitution of Others, 1949”. The SITA reflected the tolerant
attitude toward prostitutes that was central to the 1949 Convention. Since most Indian
legislators believed prostitution to be a necessary social evil that could only be
controlled rather than eradicated, the law's stated objective was the "suppression" of
immoral traffic in women and girls. Legislators admitted during the Bill's debate that
girls and women were attracted from all over the country with false promises of jobs,
better lives, marriage, etc., only to be forced into a life of shame in brothels. Human
trafficking for prostitution has been linked to a variety of underlying issues, including
but not limited to: poverty; dowry; child marriages; child widowhood; cultural
traditions; and large transient populations. It was also agreed that the majority of the
money these women made through prostitution was stolen by unscrupulous middlemen,
that they were ill-treated in brothels, and that they were at risk of contracting diseases
that could pose a threat to the entire country. Since many prostitutes rely on commercial
sex for their livelihood, legislators realised it would be counterproductive to outright
outlaw the practise without also taking steps to aid in the rehabilitation of these
individuals. They were also concerned that enforcing the Act's harsh penalties would
force prostitutes to operate in the shadows, encourage police misconduct, and
eventually endanger the lives of the women whose safety was being ensured. Therefore,
the SITA punished things like promoting prostitution that were just ancillary to sex
employment. The purpose of the SITA, as stated in the 1949 Convention, was to put a
stop to or eliminate a commercialized vice: the systematic recruitment of women and
girls for the purpose of prostitution. The SITA criminalized running a brothel, acting
as a pimp, obtaining a woman or girl for the purpose of prostitution, kidnapping or
detaining her, seducing a woman in custody, and subsisting on the proceeds of
prostitution in order to punish those who benefited from or abused prostituted
women.”

21
“However, individual, independent, and voluntary acts of prostitution without
exploitation, and in private, were not criminalized under the SITA, because the
legislators were of the view that such acts fall within the private domain which the
State could not invade. Social disapproval of such acts was not considered a sufficient
ground for the imposition of criminal sanctions. Moreover, it was felt that even if such
acts were criminalized, enforcement of the law would be very difficult. According to
the SITA's guiding concept, legal action should be taken only when a prostitute's or her
associate's actions violate public order and decency, expose the average citizen to
something that could cause them harm, or entail the exploitation of others. Thus, the
practice of prostitution in or near a public place, and seducing or soliciting for
prostitution, was made punishable. Hence, the SITA went beyond the scope of the 1949
Convention and allowed for the treatment of the prostitute as an offender in certain
situations. These provisions tended to disadvantage street prostitutes more those who
worked off the street. The SITA has so far undergone the following three stages of
development:”

1) “Its primary purpose as first established in 1956 was to criminalise the

infrastructure supporting prostitution. The terms ‘prostitution’ and ‘prostitute’ were
defined under the Act. The law targeted specific genders. Only the trafficking of
women and girls for the purposes of prostitution was acknowledged. This distinction
between women and girls was important because whereas, a girl rescued from a
brothel was immediately sent for rehabilitation, a woman who was booked for
prostitution or solicitation in a public place would be tried in a court and then acquitted,
convicted or referred to a protective home or a corrective institution. This was based
on the assumption that a woman has a right to decide whether she should stay in
prostitution or not, while a girl cannot. There was no difference in the terms of
punishments for exploiters of women or girls.”

2) The second stage was the amendments in 1978 when the definition of prostitute was
deleted and mainly some procedural changes were made.

3) The third stage in 1986 was marked by the renaming of the SITA as the “ Traffic
(Prevention) Act, 1956.” This reflected an attitudinal shift from ‘suppression’ to
‘prevention’.

22
“Nonetheless, the lawmakers maintained that the underlying issues of poverty, gender
inequality, and the role of women in Indian society must be addressed in order to
eradicate human trafficking for sex work.”

“The ITPA was made gender neutral which was an acknowledgement of the fact that
all ‘persons’- males, females or eunuchs may be victims of trafficking for prostitution.
A new definition of prostitution was given in the ITPA. Offenses against children and
minors received more attention in the form of revised procedures. However, throughout
all of these phases, there has been no consensus on what constitutes trafficking or who
is a trafficker.”
A proposed fourth stage of amendments sought to:
• Define the term “trafficking in persons” in accordance with the Palermo Protocol and
provide penalties for the same.
• Define a “child” as a person who has not completed 18 years of age.

• Take out the parts about prosecuting prostitutes who approach potential clients.

• Provide for prosecution of clients who visit brothels for “sexual exploitation of a
trafficked victim”.
• Increase penalties for some offences.

• Provide for in camera trial of offences under the ITPA.

• Create Federal and State Agencies to Fight Trafficking.

“In 2006, a bill was filed in Parliament to make these changes a reality. Since no one
could agree on anything, the bill was sent to the “Human Resource Development
Standing Committee of Parliament”. The Parliamentary Standing Committee issued its
report, titled "Hundred and Eighty Second Report on the ITPA Amendment Bill, 2006,"
on November 23, 2006. On September 6, 2007, the updated Bill was up for approval by
the Cabinet. The Union Cabinet had intended to vote on the revised Bill unanimously,
but disagreements meant it was sent to a group of ministers instead. In February of
2009, the Bill died in the Senate.”

23
“THE IMMORAL TRAFFIC IN PERSONS (PREVENTION) ACT, 1956- KEY
PROVISIONS”
Prostitution and Prostitute: A Working Definition

“According to the SITA, a prostitute is a woman who “offers her body for
promiscuous sexual intercourse for hire, whether in money or in kind.” The essential
component of the offence was ‘promiscuous sexual intercourse’. Therefore, the
female sex worker could not be convicted for a single act of prostitution, and in order
to make up a case of "carrying on prostitution," the prosecution had to show that she
engaged in promiscuous conduct for hire, or indiscriminate sexual activity with
multiple clients. Except for when it occurred near houses of worship, schools, etc.,
a single act of
prostitution was not considered unlawful. The definition of prostitution was amended
in 1978 to mean “the act of a female offering her body for promiscuous sexual
intercourse for hire, whether in money or in kind, and whether ‘offered immediately or
otherwise’” and the expression ‘prostitute’ had to be construed accordingly. This
amendment clarified that payment for the intercourse need not be immediate since such
requirement under the existing definition was difficult to prove. The specific definition
of prostitute was deleted in 1978 and it was linked to the definition of prostitution in
order to avoid the need for amending one whenever the other was amended. In 1986,
prostitution was redefined as “the sexual exploitation or abuse of persons for
commercial purposes.” and the expression prostitute has to be construed accordingly.
This definition reflects a better understanding of the problem. It highlights the key
elements of sexual exploitation, abuse, and commercial exploitation that are implicit in
involuntary/forced prostitution instead of narrowly focusing on promiscuous sexual
intercourse. These ingredients are also implied in the definition of “prostitute” thereby
excluding completely persons who indulge in prostitution by choice because there is no
sexual exploitation in such situations. Moreover, the terms “sexual exploitation” or
“commercial purposes” are not defined in the Act. According to Black's Law
Dictionary, "commercial activity" encompasses any enterprise pursued for financial
gain. Thus, when prostitution is carried on as an organized crime for the profit of third
parties who sexually exploit or abuse the victims, this section may be invoked. There is
no section in the ITPA providing for punishment of a person carrying on prostitution
for pleasure, away from public places, and without soliciting and seducing.”

24
Definition of Brothel

“The SITA defined brothel as “any house, room or place or any portion of any house,
room or place which is used for purposes of prostitution for the gain of another person
or for the mutual gain of two or more prostitutes”. In 1978, this definition was amended
to include a ‘conveyance’ used for the purpose of prostitution in order to allow the
police officers to deal with cases where vehicles like taxies and boats etc. were used as
brothels for the purpose of prostitution. In 1986, the definition of brothel was modified
to include any place used for the purposes of ‘sexual exploitation or abuse’ for the gain
of another person or for the mutual gain of two or more prostitutes.”

“This widened definition was with a view to punish brothel keepers for sexual
exploitation and abuse in the brothel and not merely promiscuous sexual intercourse.
Residence of a single woman practising prostitution is not a brothel. To constitute a
brothel, there must be at least two women using the premises. Therefore, a brothel can
be defined as a place where two or more adult, consenting sex workers engage in
transactional sex, as well as a place where people are forced to engage in sex work.”

Applicability- Distinction between Majors, Minors and Children

“As stated above the ITPA is gender neutral. It applies to the whole of India,
including the state of Jammu and Kashmir. It divides ‘persons’ into three categories:
• Majors - persons who have completed the age of eighteen years

• Minors-persons between sixteen to eighteen years of age. and

• Children - persons less than sixteen years of age.”

Offences under the ITPA

“Most of the crimes punishable by ITPA involve third parties who aid in the
performance of sexual servitude. Crimes in this category include operating a brothel
for the purpose of prostitution, and obtaining, enticing, or detaining individuals for the
purpose of prostitution. When crimes are committed against children or other minors,
harsher punishments are enacted.”

25
Maintaining or Permitting Brothel Use of Premises

““Section 3(1) of the ITPA” penalises brothel keeping or managing. It also targets
persons who act or assist in keeping or managing brothels. It was never intended that
the prostituted women or girls should be liable to punishment under this section. Section
3(2) allows prosecution of owners, lessors, landlords or their agents and tenants,
lessees, occupiers or persons in charge if it is proved that they “knowingly” or
“willingly” allowed the use of their premises for prostitution. A conviction under
section 3(2) renders the lease or agreement void and inoperative. Pimps, brothel owners
and procurers could feign ignorance of prostitution and escape punishment. Thus, a
presumption was added in 1986 in section 3(2A) which lays down that until the contrary
is proved, it will be presumed that a brothel owner, lessor, landlord etc. or his agent is
knowingly allowing or has knowledge that the premises are being used as a brothel,
if:”
(a) A search conducted under the ITPA reveals that the facilities were being utilised for
prostitution, according to a storey published in a local newspaper.; or
(b) The landlord, etc., receives a copy of the search's panchnama, or inventory list.

“This ‘conditional’ shifting of onus of proof on the landlord etc. can also be used to
circumvent prosecution. An analysis of the case law reveals the failure in prosecuting
brothel keepers. The main reason for this failure is that the witnesses are primarily the
trafficked persons and/or sex workers who are reluctant to testify against the offenders
in court. One to three years in prison and a fine of up to 2,000 rupees for a first
conviction for running a brothel; two to five years in prison and a fine of up to 2,000
rupees for a second and subsequent convictions. Anyone convicted of knowingly
allowing their property to be used as a brothel faces up to two years in prison and a fine
of up to two thousand rupees on a first offence, and up to five years in prison and a fine
on a second or subsequent conviction.”

26
Making a Meager Living Off of Prostitution Revenues

“Anyone over the age of eighteen who relies, in whole or in part, on the proceeds
from prostitution to support themselves is guilty of a crime under section 4 of the
International Trafficking in Persons Act (ITPA). The question of age has to be decided
by the court as a preliminary issue. It is only when an accused (who may be the child
of the prostitute or any other person) is found to be above eighteen years of age, is the
prosecution required to prove that he was knowingly living on the earnings of the
prostitute. The 1978 amendment provided that if it is proved that the accused
(a) had a prostitute as a roommate or constant companion or

(b) he directed her actions or had enough influence over her to suggest he was complicit
in her prostitution.or
(c) was operating as a tout or pimp on her behalf, the court can infer that he or she
knew they were getting by on prostitution money.
Members of the prostitute's family can also face charges and punishment under this
provision. As long as she does not engage in soliciting or enticing in a public location,
a woman who engages in prostitution for her own advantage is not subject to punishment
under the ITPA. It's very evident that only a person who relies on 'another' person's
prostitution earnings is covered by this provision. The maximum penalty for this offence
is two years in prison and/or a fine of one thousand rupees. Since the modifications of
1986, if the profits come from the prostitution of a juvenile, the offender faces seven to
10 years in prison.”
Getting, making, or taking a prostitute is a crime.

“Conviction for procuring, inducing, or taking a person for the purposes of

prostitution, with or without his agreement, or for causing or inducing a person to
carry on prostitution, is punishable by a fine of up to 2,000 rupees and a prison
sentence of three to seven years. The standard seven-year prison sentence for such an
offence increases to fourteen years if the victim is coerced against his or her will. The
12
ITPA mandates severe penalties for forced sexual labour. Clients who engage in
self- procurement are included in the definition of "procurer," along with
traffickers/pimps who find victims for others. The maximum penalty increases from
seven years to life in prison if the victim is a minor.”

27
Keeping Someone Hostage in Your Building

“The holding of a person in a brothel or other place with the intention of engaging in
sexual intercourse with someone who is not one's spouse is punishable by a fine and
jail time of between seven and 10 years, or perhaps life in prison. 1 For "special and
adequate reasons" stated in the ruling, however, the court may impose a sentence of
imprisonment of less than seven years. This clause can be utilised against those who
keep victims in captivity for the sole intention of exploiting them sexually for financial
benefit, such as the proprietors of brothels. Unless the opposite is proven, it will be
presumed that a violation of this provision has occurred if a person is located in a brothel
with a child. If a kid or child is found in a brothel and a medical examination reveals
that they have been sexually abused, it will be assumed that they were held there for the
purpose of prostitution or sexual exploitation for commercial gain unless proof to the
contrary is presented. Whether or not a parent can face charges for keeping their child
in a brothel is left unsaid in this section. As the case law reveals, money and at times,
important papers and identity documents including passports belonging to the victims
are taken away or withheld by the traffickers so that the victims cannot escape from
their clutches. Also, the victims are often forced into the vicious circle of prostitution
for recovering the money that was lent to them or their families by the traffickers. As
per the ITPA, Detention for the purpose of sexual intercourse with a man other than her
lawful husband shall be presumed if a person withholds a woman's or girl's jewellery,
clothing, money, or other property in a brothel or on any premises, or threatens legal
proceedings if she takes the same away, with the intent to compel or induce her to
remain there. No suit, prosecution, or other legal proceeding may be commenced
against such woman or girl to recover any money or other property purported to have
been lent or given to, pledged by, or payable by such woman or girl.”

12 MAHMOOD F and AHMED W, “THE ILLICIT BUSINESS OF SEX, LABOR, AND ORGANS,
AND LAWS ADDRESSING TO IT: A STUDY ON HUMAN TRAFFICKING IN INDIA” [2021]
journal of Original Studies 21 <http://dx.doi.org/10.47243/jos.2.1.03>

28
Prostitution-related seduction or solicitation

“The ITPA makes it illegal to engage in prostitution through seduction or solicitation

in a public place or within visible or audible proximity to a public place. To solicit the
attention of another person, or to seduce them, is defined as an act of luring or attracting
another person's attention through words, gestures, or intentional display. The
trafficked lady or someone else, possibly even her traffickers, may undertake the
soliciting. Flirting or acting in a way that attracts the attention of the opposite sex are
not considered soliciting or luring for prostitution. The prosecution must provide the
victim's testimony in order to secure a conviction under this subsection. It is well
acknowledged that section 8, which punishes soliciting, is often misused. Police
officers have been known to threaten sex workers with this provision in order to coerce
them into paying bribes or subjecting themselves to sexual exploitation. Women
are regularly arrested for solicitation when they were not engaging in any illegal
activity, such as when they are spotted at bus stops or in public markets despite the fact
that they were not engaging in any such activity at the time of their observation. Women
are disproportionately arrested under ITPA section 8 due to their criminal histories.
Conviction on a first offence has a maximum sentence of six months in prison and/or a
fine of up to 500 rupees; conviction on a second or subsequent offence carries a
maximum sentence of one year in prison and/or a fine of up to 500 rupees. As of the
1986 modifications, a male who violates this clause faces a possible seven-day to three-
month prison sentence. This provision is unfair since it allows a male prostitute to
potentially receive a lighter sentence than a female prostitute convicted under section
8. The double standards of sexual morality, where the buyers of sex are not punished
but the providers are, are highlighted by the absence of legal sanctions against the
clients.”

Involuntary Detention and Seduction

“Under Section 9, people who entice little girls into prostitution for financial gain are
subject to criminal penalties. This includes guardians and those in positions of authority
or responsibility.13 After the modifications in 1978, the minimum sentence for this
crime is seven years in jail and the maximum sentence is life in prison.”

29
 For "sufficient and special circumstances" stated in judgement, the court may impose a
sentence of less than seven years. The Indian Penal Code likewise makes custodial
seduction a crime.

No Release on Probation or after Admonition

“Section 10 of the SITA which provided for release of offenders on probation of good
conduct or after admonition was deleted in 1986. This deletion ensured that traffickers,
touts and pimps would not be released on probation, but it was detrimental to the
interests of the prostitutes since even they would not be released on probation. Section
12 of the SITA which empowered courts to obtain security for good behaviour from
habitual offenders was also deleted in 1986 as the penal provisions were made more
stringent.”

Monitoring of Repeat Offenders

“The ITPA allows for the surveillance of repeat offenders under Section 11. Within
five years of being released from prison, if a person is convicted of an offence
punishable by imprisonment for a term of two years or more under the ITPA or under
sections 363, 365, 366, 366A, 366B, 367, 368, 370, 371, 372 or 373 of the IPC, or
under the laws of any other country for similar offences, the Court may impose a
mandatory minimum sentence of five years in prison.”

Procedure under the ITPA

“Police Officers Specializing in Trafficking and Other Special Assignments The ITPA
allows for the appointment of SPOs to handle issues under the Act, particularly in areas
designated by the state government. The District Magistrates were given the authority
to authorise retired police or military officers to be SPOs, and the 1978 modifications
stipulated that SPOs shall not be below the rank of Inspector of police.

13 "Understanding Sex Trafficking: A Global Perspective" by Laura J. Lederer and Christopher A. Wetzel.

30
The SPO can be "assisted" by subordinate police officers, including female police
officers where possible, and "advised" by a non-official advisory body of up to five
local social welfare workers, including female workers where possible. The Central
Government can appoint trafficking police officers (TPOs) to handle complaints of
sexual exploitation beyond state lines by giving them authority to enforce the ITPA
across the entire country of India.”

Offences under the ITPA are Cognizable

“Police Officers Specializing in Trafficking and Other Special Assignments The ITPA
allows for the appointment of SPOs to handle issues under the Act, particularly in areas
designated by the state government. The District Magistrates were given the authority
to authorise retired police or military officers to be SPOs, and the 1978 modifications
stipulated that SPOs shall not be below the rank of Inspector of police. The SPO can be
"assisted" by subordinate police officers, including female police officers where
possible, and "advised" by a non-official advisory body of up to five local social welfare
workers, including female workers where possible. The Central Government can
appoint trafficking police officers (TPOs) to handle complaints of sexual exploitation
beyond state lines by giving them authority to enforce the ITPA across the entire
country of India.”

Search without Warrant and Removal of Persons from Brothels

“The Act grants the SPOs/TPOs with additional authority. If a SPO or TPO has probable
cause to believe that a person residing in a certain location has committed or is committing an
offence under the ITPA, he or she may enter the location, conduct a search, and expel any
and all occupants without first obtaining a search warrant. The SPO/TPO must document the
basis for conducting the warrantless search, nevertheless. At least two female police officers
must accompany the SPO/TPO at all times.

31
He should also issue a written order to two or more upstanding locals, asking them to
come and watch the search. One of these witnesses must be a female and she need not
be a native speaker or even a resident of the same area. An obligatory female witness is
present. It is a violation of section 187 of the IPC to either not attend or to fail to attend
in order to witness the search. Anyone detained as a result of a search warrant must be
brought before a judge. It is required to get checked out by a doctor in order to

(i) find out how old you are,

(ii) see if you have any signs of sexual abuse, or

(iii) see if you have any STDs. This is significant since trafficking of children and
minors typically results in harsher penalties. Additionally, if the victim is under
the age of eighteen, they should be committed to a children's home as a child in
need of care and protection under the JJ Act. Only female police officers or
female members of officially recognised welfare organisations or institutions
are allowed to question women and girls.”

Rescue of Persons

“If a magistrate receives information from the police or any person authorised by the
state government or otherwise that leads him to believe that an individual is residing in,
engaging in, or being forced to engage in prostitution in a brothel, the magistrate may
order a police officer not below the rank of sub-inspector to enter the brothel, remove
the individual from there, and produce him before the magistrate. A magistrate may
order a police officer not below the rank of sub-inspector to enter a brothel, remove the
person from there, and produce him before the magistrate if he has probable cause to
believe that the person is residing in, is carrying out, or is being forced to carry out
prostitution in the brothel.”

Custody of Persons Removed/Rescued

“If a person is taken into custody during a search pursuant to Section 15 or rescued pursuant
to Section 16, they must be brought before the nearest magistrate as soon as possible and
remanded to safe custody until they can be brought before the magistrate who issued the search
warrant or rescue order.”

32
“There shouldn't be more than ten days in between. It's not in anyone's best interest to
return the rescued/removed person to the care of someone who could potentially abuse
their power over them. After hearing the rescued/removed person, the magistrate may
order the probation officer to investigate the individual's age, character, and
antecedents; the suitability of his or her parents, guardian, or husband claiming to take
charge of him; and the nature of influence which the circumstances at his or her home
are likely to have on the individual if he or she is sent home. While waiting for the
probation officer's report, the magistrate can issue an order for the rescued person's
temporary safe custody. A person who has been removed or rescued may be placed in
protective custody by the magistrate while an investigation is conducted, or the
magistrate may decide to place the individual in temporary detention. The ITPA
mandates the temporary placement of rescued minors and children in approved
children's homes for their protection. The JJ Act supersedes all other laws, so any
juveniles or children who have been rescued should be brought before a child welfare
committee established under section 29 of the JJ Act to receive protective custody
orders. After the date of the order, no one can be held in jail for more than three weeks.
This means that every 21 days, new orders will need to be placed. The custody of a
child should not be entrusted to someone who could be a bad influence. If the magistrate
determines, after conducting an investigation, that the rescued person is in need of care
and protection and that the information presented is accurate, then the rescued person
may be placed in a protective home or adequate custody for a period of one to three
years.”

“If a trafficker, exploiter, pimp, etc. poses as a parent or guardian or husband, the
ITPA allows the magistrate to verify the capacity or genuineness of such parent or
guardian or husband through an investigation by a recognised welfare institution or
organisation before returning the rescued person to them. A Magistrate "may" preserve
a list of experienced social welfare workers, in particular women workers in the field
of suppression of immoral traffic in persons, to whom he "may" turn for assistance in
carrying out his responsibilities under Section 17.”

33
“The word "may" in section 17(5) of the ITPA is to be understood as "must" in light
of the legislative history and the purpose of the ITPA, which is to help individuals
who are suffering and being exploited by others. Therefore, all procedures before the
magistrate are null and void if, at the relevant moment, the magistrate is not aided by a
panel of five respectable persons as envisioned by section 17(5) of the ITPA. A section
17 magistrate may only take action within the narrow confines of the law. Therefore,
the magistrate lacks the authority to place a girl in a protective home solely on the basis
that she engaged in prostitution if she was not doing so for the benefit of another male
or in conjunction with another prostitute.”

The Brothel Will Be Shut Down, and the Offenders Will Be Forced to Leave the
Premises.
“If a place is suspected of being used as a brothel or for prostitution and it is within
200 metres of a notified public space, the magistrate might order the premises to be
closed. A magistrate may issue an order for the removal of a person from a house,
room, location, or portion thereof after issuing a show cause notice and hearing that
individual: Ordering the occupant to vacate the premises within seven days of the
order's issuance Within one year (or three years if a child or juvenile has been located
in such house following a search performed under section 15), after such order has
been passed, the magistrate's prior approval shall be necessary for the leasing out of
such premises, etc. If the owner or landlord is judged to be blameless, the house or
other property should be returned to them with the additional instruction that it not be
rented out or given to the individual who allowed the illegal usage.

Disobeying a magistrate's orders is a crime that carries serious consequences. When

someone is found guilty of an offence under Section 3 or Section 7, the "court" might
issue comparable instructions without giving them a chance to explain themselves.

34
Such judgments cannot be challenged in court. Any lease or arrangement under which
the dwelling, room, location, or portion in question was inhabited at the time an order
was issued under Section 18(1) or 18(2) is null and void.”

Request to Remain in a Safehouse

“The local magistrate can hear a petition from a prostitute or someone who is being
forced into prostitution. After hearing the application and doing any necessary
investigation, the magistrate may issue an order requiring that the individual be placed
in the care of a protective home, a corrective institution, or a person nominated by the
court.”

Detention and Rehabilitation- Corrective Institutions and Protective Homes

“Detention at a "corrective institution" for two to five years is an alternative to
incarceration for female offenders convicted of prostitution in or near a public place or
of enticing or soliciting for the purpose of prostitution. Women who have been
trafficked are viewed by the ITPA as criminals who require 'rehabilitation' in a prison
centre. The current state of ITPA implementation demonstrates that the idea of
"correctional institutions" is counterproductive to victim rehabilitation. The ITPA
allows for the establishment of "protective houses" to house women and girls who
have been rescued from prostitution, in addition to correctional institutions for 'female
offenders' convicted under sections 7 and 8. Amendments made in 1986 mandated the
employment of technically competent staff and the installation of appropriate
infrastructure in such residences. If the State Government or an authority authorised by
it determines that a transfer of an inmate from one correctional facility to another, or
from one correctional facility to a protective home, is desirable having regard to the
inmate's conduct, the type of training to be imparted, and other circumstances, the
State Government or the authority may make such a transfer.”

35
“Without a licence given by the state government, nobody else can set up or run a
protective home or a correctional institution under the ITPA. A fine of up to one
thousand rupees, or up to one year in prison or a fine of up to two thousand rupees, or
both, may be imposed for a first conviction of illegally establishing or maintaining a
protective home or corrective institution. Administrators of shelters and prisons must
produce necessary documents to the courts upon request. The purpose of this regulation,
which was enacted in 1986, was to force these organisations to finally keep proper
records.”

Rule-Making Authority

“The ITPA gives the state governments the authority to establish regulations for
implementing its goals.14 Such regulations may include, but are not limited to, the
following: the notification of 'public places;' the placement and maintenance of persons
removed or rescued under the ITPA; the release of a 'offender' from a corrective
institution; the detention and keeping of persons in protective homes or corrective
institutions and their maintenance; the establishment, maintenance, management, and
supervision of protective homes and corrective institutions; the appointment, powers,
and duties of persons appointed to manage and supervise protective homes and
corrective institutions; and the maintenance.”

Special Courts and Summary Trials

Special courts for expedited trial of ITPA offences may be established by the state
government in consultation with the relevant High Court. In cases involving violations
of the ITPA, the state government may also order a summary trial, at which point the
magistrate may impose a sentence of imprisonment of up to one year. Under the ITPA,
the federal government has the authority to establish expedited trial tribunals for crimes
that cross state lines.

14 MAHMOOD F and AHMED W, “THE ILLICIT BUSINESS OF SEX, LABOR, AND ORGANS, AND
LAWS ADDRESSING TO IT: A STUDY ON HUMAN TRAFFICKING IN INDIA” [2021] journal of Original
Studies 21 <http://dx.doi.org/10.47243/jos.2.1.03>

36
“Between Rajasthan and Madhya Pradesh all engage in socially sanctioned practises
that facilitate trafficking and commercial sexual exploitation. The devadasi system, in
its many guises, is another tradition steeped in exploitation. The name Devadasi means
"female servant of god" in Sanskrit. However, the term is commonly used to allude to a
ritual that dates back to the sixth century and involves the dedication or "marriage off"
of young pre-pubescent girls—sometimes as young as three or four— to a local deity.
These young women found permanent employment at the temple, where they maintained
lifelong ties. The girls would perform rituals and sing and dance for the wealthy as part
of their duties as temple guardians. In many regions of India, however, the devadasi
system has evolved into an institutionalized, religiously sanctioned system of
exploitation of economically and socially disadvantaged women. Most of these ladies
are untouchables, members of a lower caste, or otherwise marginalized in society. The
terrible maw of sexual exploitation drew many of them in. They were obligated to
"serve" the temple priest, the local feudal lords, and any other wealthy or powerful males
in the area. There was nowhere for them to go, and even if they did manage to get away,
they would be rejected by society. They were forbidden to have offspring while alive,
let alone marry a mortal man. Up until the middle of the 19th century, this was the norm.
The fortunes of devadasis were intertwined with that of the Hindu princes and wealthy
feudal lords who supported them. Therefore, they were negatively affected by the rapid
growth of British power over India in the 19th century. They were compelled to seek the
support of subordinate monarchs or even to relocate. Colonial authorities were at first
hesitant to interfere with devadasis ceremonies since they were seen as an integral
component of Indian culture. During the years 1880–1890, the first anti–devadasi
movement arose. Numerous anti-devadasi system laws were passed in various Indian
presidencies or areas between the 1920s and the 1940s in response to the persistent push
of reformers. These laws made it unlawful to utilize devadasis in temples and dedicate
girls to temples. In 1934, “the Bombay Devadasi Protection Act” was passed, making it
illegal to dedicate a lady whether or not she gave her permission to do so. The Act also
established legal consequences for anyone except the woman being committed who is
proved to have participated in a dedication. Those found guilty might spend a year in
jail, pay a hefty fine, or face both consequences. This Act established the legality of
devadasi marriages and recognized the legitimacy of any offspring born of such
unions.”
“When a devadasi was involved in a land dispute, the local collector was supposed to
step in and mediate. The practise of dedication was made illegal in the southern Madras

37
Presidency by the “Madras Devadasi (Prevention of Dedication) Act in 1947”. There
are a number of cultural and religious practices in India that have contributed to the
ongoing sexual exploitation of women and girls. For instance, the rajnats of Rajasthan,
the bedias of Madhya Pradesh, and the bachadas of the border region between Rajasthan
and Madhya Pradesh all engage in socially sanctioned practises that facilitate
trafficking and commercial sexual exploitation. The devadasi system, in its many
guises, is another tradition steeped in exploitation. The name Devadasi means "female
servant of god" in Sanskrit. However, the term is commonly used to allude to a ritual
that dates back to the sixth century and involves the dedication or "marriage off" of
young pre-pubescent girls—sometimes as young as three or four—to a local deity.
These young women found permanent employment at the temple, where they
maintained lifelong ties. The girls would perform rituals and sing and dance for the
wealthy as part of their duties as temple guardians. In many regions of India, however,
the devadasi system has evolved into an institutionalised, religiously sanctioned system
of exploitation of economically and socially disadvantaged women. Most of these ladies
are untouchables, members of a lower caste, or otherwise marginalised in society. The
terrible maw of sexual exploitation drew many of them in. They were obligated to
"serve" the temple priest, the local feudal lords, and any other wealthy or powerful
males in the area. There was nowhere for them to go, and even if they did manage to
get away, they would be rejected by society. They were forbidden to have offspring
while alive, let alone marry a mortal man. Up until the middle of the 19th century, this
was the norm. The fortunes of devadasis were intertwined with that of the Hindu princes
and wealthy feudal lords who supported them. Therefore, they were negatively affected
by the rapid growth of British power over India in the 19th century. They were
compelled to seek the support of subordinate monarchs or even to relocate. Colonial
authorities were at first hesitant to interfere with devadasis ceremonies since they were
seen as an integral component of Indian culture. During the years 1880–1890, the first
anti–devadasi movement arose. Numerous anti-devadasi system laws were passed in
various Indian presidencies or areas between the 1920s and the 1940s in response to
the persistent push of reformers.”

38
“The Act also established legal consequences for anyone except the woman being
committed who is proved to have participated in a dedication. Those found guilty might
spend a year in jail, pay a hefty fine, or face both consequences. This Act established
the legality of devadasi marriages and recognised the legitimacy of any offspring born
of such unions. The devadasis' rights were also among those intended to be safeguarded
by the 1934 Act. When a devadasi was involved in a land dispute, the local collector
was supposed to step in and mediate. The practise of dedication was made illegal in the
southern Madras Presidency by “the Madras Devadasi (Prevention of Dedication) Act
in 1947”.”

The devadasi system was outlawed after India attained its independence in 1947. But
the exploitative practise persisted in different sections of the country, leading to the
need for legal intervention. Whether or not the dedicated woman gives her permission,
the act of dedication itself is prohibited by “the Karnataka Devadasis (Prohibition of
Dedication) Act, 1982”. The maximum sentence is three years in prison and a fine of up
to 2,000 rupees. Anyone, including parents, guardians, or relatives, who takes part in
the dedication ceremony might face two to five years in prison and a fine of 2,000 to
5,000 rupees. It further states that a devadasi's lawful marriage is recognised and that
their children are not deemed to be of questionable paternity. Similar provisions to “the
Karnataka Devadasis (Prohibition of Dedication) Act, 1982” can be found in “the
Andhra Pradesh Devadasis (Prohibition of Dedication) Act, 1988”, which replaced
“the Andhra Pradesh (Andhra Area) Devadasis (Prevention of Dedication) Act, 1947”;
however, the penalties under the new law are more severe. Furthermore, even the
committed woman is penalised under the Karnataka Act, although they are exempt
under the Andhra Pradesh Act. Many studies have shown that the devadasi tradition
is alive and well in the southern Indian states of Karnataka, Andhra Pradesh, Tamil
Nadu, and Maharashtra despite legal interventions, thanks to a combination of factors
including poverty, social acceptance, the sex trade, and religious practises that have
institutionalised the sexual exploitation of women over time.

39
“The Indian Penal Code, 186015”

Many different crimes related to the trafficking of women and children for sexual
exploitation are addressed either directly or indirectly throughout the IPC. Slavery in
any of its forms is trafficked for. Slavery in the form of human trafficking for the
purpose of commercial sexual exploitation is widely acknowledged. The crime of
importing, exporting, removing, purchasing, selling, or disposing of a person as a slave,
or the crime of accepting, receiving, or detaining a person against his will in order to
use him as a slave, were all punishable under Section 370, IPC. There was a possible
seven-year prison sentence and a hefty fine for the crime. The habitual trade in slaves
has a harsher penalty of up to ten years in jail, or even life in prison. “The Criminal Law
(Amendment) Act of 2013” added a new section 370 to the IPC, which defines the
crime of trafficking in humans.

The Concept of Trafficking Defined

Recruiting, transporting, harbouring, transferring, or receiving a person or persons for

the purpose of exploitation while using threats, force, or other forms of coercion,
abduction, fraud, deception, abuse of power, or inducement (including the giving or
receiving of payments or benefits) to gain the consent of any person having control over
the trafficked person is now defined as human trafficking under Section 370. Whether
or not the victim gives consent has no bearing on whether or not a person has committed
the crime of trafficking. To be exploited is to be subjected to any type of physical or
sexual abuse, slavery or practises conceptually similar to slavery or servitude, or the
forced removal of an individual's organs. This concept encompasses a wide range of
criminals who facilitate or benefit from human trafficking. Consent is not a defence if
the trafficker obtained it through deception, coercion, fraud, or any of the other illegal
methods. Article 3 of the Palermo Protocol to the UNCTOC serves as the basis for the
concept of trafficking in section 370 of the IPC.16 There are, however, important
differences between the two meanings.

15 Act No. 45 of 1860

16 "Human Trafficking in India: A Literature Review" by Suman Nath and Abhijit Das.

40
The "abuse of a position of vulnerability" as a manner by which a person can be
trafficked is not mentioned in Section 370. Furthermore, forced labour or services, one
of the forms of exploitation described in article 3, is not addressed in section 370.
Section 370 specifies tiered punishments for trafficking offences.

The crime of trafficking carries a minimum sentence of seven years in prison and a
maximum of ten years in prison and a fine of up to forty times the amount of money
gained from the crime. If a government employee or law enforcement officer is found
guilty of human trafficking, they face life in jail and a hefty punishment. The
prosecution of such a public servant is not subject to any penalty.

The demand side of the demand supply chain in human trafficking is attacked by
Section 370A, which makes it illegal to exploit a person who has been trafficked.
Penalties of up to seven years in prison and a fine of up to $7,000 are in place for anyone
who intentionally or with probable cause engages a juvenile in sexual exploitation of
any kind. If you or someone you know has exploited a famous person in a similar way,
you might face three to five years in prison and a hefty fine. The terms "minor" and
"sexual exploitation" are not defined in either Section 370 or Section 370A.

Kidnapping and Abduction

Human trafficking often begins with the victim's kidnapping or abduction. It is

considered kidnapping from India whenever any person, regardless of age, is
transported outside of India without the consent of that person or his or her guardian in
the case of minors and persons of unsound mind. When we say "India," we refer to the
entire subcontinent of India, minus the state of Jammu and Kashmir. Kidnapping from
lawful guardianship occurs when a minor (a boy under the age of sixteen, a girl under
the age of eighteen, or an incompetent adult) is removed or persuaded out of the keeping
of the lawful guardian without the approval of the guardian. The motive for the
abduction is irrelevant. The crime is complete at the legal guardian's removal. The crime
of kidnapping from legal guardianship does not take physical distance into account.

41
The crime occurs when the ward is removed from the care of the guardian without
the guardian's permission. The legality of the guardian's approval depends on whether
or not they understand the implications of their approval. It doesn't matter if the victim
agrees or not. Methods of taking include physical force, constructive force, allurement,
duping, escorting, deception, etc. To violate section 361, the accused only needs to
convince the juvenile or mentally ill person that they should be removed from the care
of their legal guardian. Kidnapping laws can be used against traffickers who prey on
minors by promising them jobs, marriage, material things, a better life, etc. Abduction
occurs whenever someone, whether a kid or an adult, is forcibly or dishonestly removed
from their location. In contrast to kidnapping from legal guardianship, which ends once
the victim is no longer under legal supervision, abduction is an ongoing crime. For
kidnapping with the aim to unlawfully and surreptitiously imprison the victim, the same
penalty applies. It is not essential to physically restrict someone in order for them to be
confined in one's mind. A same penalty applies to those who illegally conceal or
imprison a kidnapped or abducted individual.17 So, not only the kidnappers or
abductors, but also those who aid in hiding the victims, are equally responsible for their
actions. These laws can be used to prosecute brothel owners, managers, or "madams"
as well as anybody else who knowingly employs a victim of human trafficking. The
crime of kidnapping someone with the intent to do great bodily harm or to force them
into servitude has a maximum penalty of ten years in jail and a fine of up to $100,000.

Trafficking for the Purpose of Marriage

Marriage ceremonies are often used to conceal human trafficking. Where female
infanticide is common and men have trouble finding wives, men would occasionally
"buy" women from other states or even neighbouring nations to fill the shortage. It's
possible that Indian brides are also being smuggled abroad. Most of these 'brides' come
from low-income backgrounds and have little choice but to marry. The parents or
guardians are often compensated by the traffickers before their children are sold on. In
some cases, the marriage is really a front to get the lady, who will later likely be
exploited sexually or sold on.

17 "Understanding Sex Trafficking: A Global Perspective" by Laura J. Lederer and Christopher A. Wetzel.

42
A man can face up to seven years in prison and a fine for initiating such a sham
marriage with fraudulent or dishonest motives, and if he has sexual intercourse with the
victim by leading them to believe that they are legally married, he faces up to ten years
in prison and a fine. To abduct a woman with the aim to force her into an arranged
marriage or to lure her into sexual activity against her will is a crime punishable by up
to ten years in jail and a fine of up to two thousand dollars. The same punishment applies
if a woman is coerced or persuaded into engaging in sexual activity against her will by
means of criminal intimidation, abuse of authority, or any other form of compulsion.
Thus, the trafficker, the trafficked person's family members, and anybody who
harbours, transports, or otherwise aides in the crime are all subject to prosecution under
Section 366 or for abetment of the crime. Section 366, makes it a crime to marry a girl
with the intent to force her into prostitution. The word "force" has been construed to
include "force by stress of circumstance" in this gender-specific clause.

Wrongful Restraint and Confinement

Wrongful restraint of victims of trafficking is a crime that carries a maximum penalty

of one month in prison and a fine of up to 500 Indian rupees. They are also vulnerable
to improper confinement, which carries a maximum penalty of one year in prison and
a fine of up to one thousand rupees. The penalties for various types of unlawful
confinement vary.

Procuration of Minor Girl and Importation of Girl from Foreign Country Sections
366A and 366B of the IPC were added in 1923 to reflect India's commitments
under the International Convention for the Suppression of the Traffic in Women and
Children, 1910, to which it was a signatory. The law was intended to criminalise
the buying and selling of prostitutes across international borders. In order to punish
procurers or other people who use force or violence to entice women and girls under
the age of twenty-one for immoral purposes, even with consent, Article 3 of the 1910
Convention required signatory states to take the necessary steps to incorporate the
necessary steps into their legislation.

43
Procurers of minor girls who "by any means whatsoever, induce any minor girl under
eighteen years of age, to go from any place or to do any act with intent that such girl
may be, or knowing that it is likely that she will be, forced or seduced to illicit
intercourse with another person" are subject to up to ten years in prison and a fine of up
to two thousand dollars. Sexual activity between a man and a woman who are not
married is called "illicit intercourse." This clause applies in most cases of trafficking for
the purpose of commercial sexual exploitation. The defendant cannot claim reasonable
suspicion that the girl was older than the legal minimum. Section 366A does not apply
to situations in which a person leads a female to travel somewhere else so that he can
seduce her there. The prosecution must show that the defendant intended for the girl to
be pushed or persuaded into having sexual relations with "another" person, or that he
knew that such conduct was highly likely to occur. No one can be prosecuted under this
provision if they encourage or help a woman to engage in prostitution for financial gain
from customers. It is not a violation of Section 366A for a person to merely accompany
a woman engaged in sex work who is under the age of eighteen. The purported
intercourse need not have been consummated or even attempted; rather, it need only
18The
have served as an inducement to relocate. commission of the intercourse or the
woman's permission are irrelevant once intent has been shown as the only elements of
the crime. Foreign-to-domestic trafficking is illegal under Section 366B. Individuals
who bring girls under the age of 21 into India from outside the nation or from the state
of Jammu and Kashmir with the intent or knowledge that she will be subjected to
coercion or seduction into engaging in sexually explicit conduct are the focus of this
provision. The issue of jurisdiction and extradition is further complicated by cross-
border trafficking. The maximum sentence for this crime is ten years in prison and a
fine.

Selling or Buying of Minors for the Purpose of Prostitution

Under Sections 372 and 373, it is illegal to sell or buy a minor with the intention of
using them for prostitution, illicit intercourse with another person, or any other unlawful
and immoral purpose.

18 MAHMOOD F and AHMED W, “THE ILLICIT BUSINESS OF SEX, LABOR, AND ORGANS,
AND LAWS ADDRESSING TO IT: A STUDY ON HUMAN TRAFFICKING IN INDIA” [2021]
journal of Original Studies 21 <http://dx.doi.org/10.47243/jos.2.1.03>

44
The maximum sentence for each offence is ten years in prison and a $250,000 fine. In
these contexts, "illicit intercourse" refers to sexual activity between unmarried
individuals Only transactions that serve the goals outlined in the relevant sections are
subject to the provisions. They do not apply to the sale of a person in and of themselves,
regardless of whether or not that is the transaction's immediate or ultimate goal. Thus,
the purchase or sale of an adult or a person under the age of eighteen is not addressed
in these provisions. It is important to read both Section 372 and Section 373 together.
Section 372 uses the phrases "sells," "lets to hire," and "otherwise disposes of," while
Section 373 uses the words "buys," "hires," and "otherwise gains ownership." All
minors, male and female, are covered by these provisions, although female minors
receive additional safeguards. Until the opposite is proven, it will be presumed that
whomever sells or otherwise disposes of a minor girl to a prostitute or brothel manager
did so with the intention specified in this section. Prostitution is presumed to be the
motive for any acquisition of a girl by a prostitute or brothel keeper unless the contrary
is shown.

These provisions provide for the prosecution and punishment of human traffickers and
other exploiters involved in the prostitution of minors, including brothel madams and
customers. Regardless of whether or not the girl was living a "immoral life" prior to the
transaction, Section 372 still applies. Sections 372 and 373 make it clear that both male
and female adolescents are subject to sale or purchase for the aforementioned
objectives, in contrast to Sections 366, 366-A, and 366-B, which only apply if the victim
is a female.

Sexual Offences

Women and children who are trafficked for sexual exploitation often experience
extreme sexual violence. To break their will and initiate them into prostitution, the
perpetrators resort to sexual abuse. Customers frequently resort to sexual assault as
well. While the IPC does have certain rules addressing sexual offences, practically all
of them apply solely when the victim is a female. As stated in Article 375 of the IPC,
rape is one such crime. Rape is a crime that can only be prosecuted against males.

45
The use of the mouth on the genitalia is also included. The woman's volition or assent
should not be sought before carrying out these acts. Her assent would not be valid if it
were tainted by any of the following: fear, menace, intimidation, deception,
intoxication, unsound mind, etc. Legally, consent is more than just apathy in the face
of inescapable coercion. The act of submission itself does not constitute free consent or
absolve a man of rape charges, but free consent does require submission. The minimum
age of consent used to be 16, however that was changed in 2013. With the revisions
made in 2013, the minimum age of consent is now eighteen. However, marital rape is
recognised only if the wife is under the age of fifteen. The penalties for rape have also
been increased as a result of the 2013 changes. The sentence can be anywhere from
seven years to life in prison, plus a fine. Rape of a woman under the age of sixteen, rape
by a person in a position of trust or authority, rape by a person in a position of control
and several rapes on a woman are all punishable by 10 years to the rest of the offender's
natural life in jail. The penalties for repeat offenders, custodial sexual intercourse, and
gang rape were all significantly enhanced by the 2013 changes. If a rape victim's
identify is made public, it is considered a crime. The victim's testimony alone may be
enough to get a conviction in a rape case if her evidence is conclusive. A conviction in
a rape case can be reached even without supporting evidence. When properly justified,
a day delay in filing the FIR is not a deal breaker. When possible, a rape trial or
investigation should wrap up within two months of the submission of the charge sheet.
The court may take precautions to prevent the accused from confronting a victim under
the age of eighteen who is testifying about an alleged rape or other sexual offence, while
still allowing the accused to cross-examine witnesses. Screens, one-way mirrors, and
video conferencing equipment can be used to accomplish this. In any prosecution for
rape or other sexual offence, where the issue of consent is at play and the victim is a
woman, evidence of the victim's character or of her previous sexual experience with
any individual is immaterial on the issue of such consent or the quality of consent. It
is not permissible to introduce evidence or ask questions in cross-examination of the
victim about her general immoral character or previous sexual experience with any
person for the purpose of proving such consent or the quality of consent in a
prosecution for rape or attempted rape where the question of consent is at issue.

46
In such circumstances, if evidence of sexual activity between the accused and the
woman is shown and the woman claims that the sexual activity occurred without her
consent, the court must conclude that the woman did not grant her consent and the
burden of proof must shift to the accused. The woman's sexual history in the past does
not matter.

Absurd Violations

Carnal intercourse against the order of nature with any man or woman, regardless of
age or permission, is a crime punishable under Section 377. Previously, this was the
only provision that could be used to prosecute cases of nonpenile-vaginal sexual assault
on women and penetrative sexual assault on male minors. However, this clause may be
of limited utility due to the expanded definition of rape in section 375 of the IPC and
the passage of “the Protection of Children from Sexual Offenses Act, 2012”. The
maximum sentence for this crime is life in prison, and the maximum fine is $10,000.

New Sections 354A, 354B, 354C, and 354D were added by the Criminal Law
(Amendment) Act of 2013.
Displaying pornography against a woman's consent or making sexual advances toward
her are forms of sexual harassment that can result in a fine or jail time of up to three
years, or both. Offenders face up to a year in prison, a $1,000 fine, or both for making
comments having a sexual overtone. Men who commit or conspire to commit sexual
assault against women face up to seven years in prison and a $7,500 fine in some
jurisdictions. If a man is caught on his first offence watching or recording the image of
a woman performing a private act in circumstances where she would normally have the
expectation of not being observed by the perpetrator or by any other person at the
perpetrator's behest, he faces a sentence of one to three years in prison and a fine. A
second or subsequent conviction carries a sentence of three to seven years in jail in
addition to any monetary penalties imposed. It is also illegal to distribute photographs
or videos that have been captured with the victim's permission but without their
permission. Criminals who exploit victims financially or coercively by distributing
pornographic videos of them may face prosecution under this law.

47
Both in-person and virtual stalking carry serious penalties upon conviction, including
up to three years in prison and a hefty fine. The maximum sentence for a second or
subsequent conviction is five years in jail and a fine of up to $250,000. Women, who
frequently perform or abet similar actions on the victims, cannot be prosecuted under
these rules due to the gender particular nature of these offences. Before the changes of
2013, the penalty for using physical or criminal force against a woman with the intent
to affront her modesty was up to two years in prison, a fine of up to $2,000, or both.
The current penalty for this offence is between one and five years in prison and a fine.
Previous penalties for insulting a woman's modesty with words, sounds, gestures, etc.,
were a year in prison, a fine, or both. As of the 2013 changes, the maximum sentence
for this crime is now three years in prison and a fine of up to three thousand dollars. It
is possible to be found guilty of any of these offences. In certain cases, a female police
officer or officer must file the first report of criminal conduct (FIR) required by “section
154 of the Criminal Procedure Code”. A police officer faces a harsh prison sentence of
six months to two years and a fine if he or she fails to file a First Information Report
(FIR) in cases involving trafficking, exploitation of a trafficked person, rape, and
assaults or criminal force to a woman with the intent to outrage her modesty.

Provisions Relating to Obscenity and Pornography

In India, sections 292-294 of the Indian Penal Code constitute the customary legal
framework for dealing with obscenity, which includes pornography. The dissemination,
distribution, public exhibition, circulation, etc. of obscene material is prohibited by
Section 292 of the IPC. In accordance with the aforementioned definition, obscene
content is defined as anything that "is lascivious or appeals to the prurient interest or
which tends to deprave and corrupt persons who are likely, having regard to all relevant
circumstances, to read, see or hear the matter contained or embodied in it." Penalties
are increased under Section 293 for distributing pornographic materials to anybody
under the age of twenty. The very suggestion or attempt of doing so is illegal. These
laws can be used to punish those who profit from sexually exploiting minors by selling
them pornographic materials.

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“INDECENT REPRESENTATION OF WOMEN (PROHIBITION) ACT,
198619”
Advertisements and sales of publications that depict women in a demeaning way are
specifically targeted under the Indecent Representation of Women (Prohibition) Act,
1986. It's useful for dealing with pornographic material. Sections 3 and 4 of the Act
forbid the publication and distribution of indecent photos of women. In the first
instance, a person convicted of violating Section 3 or Section 4 faces up to two years in
prison and a fine of up to 2,000 rupees; in the second and subsequent instances, the
penalties increase to six months to five years in prison and a fine of up to 100,000
rupees.

“THE INFORMATION TECHNOLOGY ACT, 2000”

The Internet allows for the easy production and rapid distribution of pornographic
content, including images of women and children. To "depict, in books, periodicals,
pictures, films, and other media, representations of sexual behaviour that are seductive
or obscene and aimed to provoke sexual desire" is the definition of pornography.
Pornography, in contrast to other forms of cybercrime, actually increases the Internet's
popularity. The Internet's global reach and the difficulty of agreeing on a single
definition of obscenity or pornography make it difficult to regulate legally. The lack of
technologically-advanced filters to remove inappropriate content from the Internet is
also a problem. Obscenity, including pornography, is illegal in India under the
Information Technology Act, 2000.

Voyeurism

Capturing, publishing, or transferring an image of a person's private area without their

knowledge is a crime punishable by up to three years in prison and/or a fine of up to
two million rupees. It should be mentioned that taking a picture of someone's privates
without their permission is illegal regardless of whether or not the picture is ever
emailed anywhere or published.

19 Act No. 60 of 1986

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Electronic Dissemination of Sexually Explicit Material

If you are found guilty of publishing or transmitting or causing the publication or

transmission of any obscene material in electronic form, you could face up to three
years in prison and a fine of up to five lakh rupees, and if you are found guilty again,
you could face up to five years in prison and a fine of up to ten million rupees. Neither
"publication" nor "transmission" are defined under section 67, but they both typically
entail communication to others, as defined in section 66E of the IT Act. This includes
"forwarding" obscene text, audio, or video files, images, animation, songs, movies,
jokes, photographs, MMS, stories, etc. sent by electronic means. Email attachments,
cell phones, storage devices, websites, social networks, microblogs, etc. are all viable
delivery mechanisms for such content.

Pornography

Electronic pornography and child pornography are each addressed in their own
provisions of the IT Act, which were added in 2008. If you are caught "publishing or
transmitting or causing to be published or transmitted material containing sexually
explicit act or conduct," also known as pornography, in electronic form, you could face
up to five years in prison and a fine of up to ten lakh rupees (about $1,600), and if
you're caught a second or subsequent time, you could face up to seven years in prison
and a fine of up to $16,000 (about $2,800). Pornographers who profit from their
victims' suffering can face prosecution under this clause. When it comes to child
pornography, refer to Section 67B. The term "child" refers to anyone who is less than
eighteen years old. Although the scope of the offence under section 67B of the IT Act
appears to be broader, the punishment provided is the same as for pornography:
imprisonment up to five years and a fine up to ten lakh rupees on first conviction, and
imprisonment up to seven years and a fine up to ten lakh rupees in the case of a second
or subsequent conviction. Section 67B of the IT Act makes the following offences
illegal:
If you:

• Produce offensive, indecent, or sexually explicit written or visual content involving

minors.;

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• Collect, seek out, browse, download, advertise, promote, exchange, or distribute
child pornography;
• Cultivate, entice, or induce children to online relationship;

• Facilitate online abuse of children, then you are engaging in child pornography.
There is no definition of "sexually-explicit" in “Section 67B of the Information
Technology Act”. In addition, the term "abuse" is not defined in the regulation.
Paedophiles frequently engage in online sexual grooming of adolescents to entice and
solicit them for later offline abuse. This section would address the issue of webcams
being used to transmit photographs of child sexual abuse. Producing, distributing, or
exposing a minor to pornographic media would all fall under this category. The JJ Act
will apply to a minor who has committed an IT Act offence. “Sections 67 and 67A of
the IT Act” only criminalise "publishing," "transmitting," and "causing to be
published or transmitted" obscene content in electronic form; they do not make
accessing such material online itself a crime. However, the word "causes to be sent"
can be used against those who receive such content because they, like the senders, are
the ones who "cause" the transmission to occur. However, section 67B makes it clear
that it is illegal to knowingly acquire, search for, browse, download, advertise,
promote, exchange, or distribute child pornography.

Liability of Intermediaries

In order to gain access to the Internet and its associated services, users must go via
intermediaries. Providers of "telecom service," "network service," "Internet service,"
"web hosting service," "search engines," "online payment sites," "online auction sites,"
"online market places," and "cyber cafes" are all examples of intermediaries.
Consequently, the IT Act also considers websites like Facebook, Google, Yahoo, etc.
to be intermediaries. “Section 79 of the IT Act”, as revised in 2008, protects
intermediaries from liability for the information of third parties that they make public,
so long as the intermediary merely acts with "due diligence in discharging their duties"
under the IT Ac. Proof that the intermediary routinely examined content, either through
filters or other means, to verify that it did not host offensive information is potentially
required for due diligence purposes.

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In addition, intermediaries are obligated to inform their users by clearly stating under
their "Rules and Regulations, Privacy Policy and User Agreement" that users should
not put up any information that is inter alia grossly harmful, harassing, obscene,
pornographic, paedophilic, invasive of another's privacy, or may harm minors in any
way, or violates any law, or deceives or misleads the addressee ab. A member who
knowingly posts such offensive material is in violation of the website's "Basic Terms
and Conditions" and may face legal consequences under the Information Technology
Act. For 90 days (or however long an investigation may take), the intermediary must
"preserve such information and associated records." If the intermediary knows about
the illegal content or is told by the government, it has 36 hours to remove it or face legal
consequences.

“THE YOUNG PERSONS (HARMFUL PUBLICATIONS) ACT, 195620”

Despite its limited applicability in trafficking cases, “the Young Persons (Damaging
Publications) Act, 1956” can be utilised to punish pornography and the distribution of
obscene photographs of women and children if they are harmful to or corrupt the mind
of a person under the age of twenty-one. Publications like books, magazines, pamphlets,
flyers, newspapers, and the like that feature stories depicting criminal behaviour, acts
of brutality or cruelty, or occurrences that are ugly or horrifying are regarded
detrimental because of their potential to corrupt a young reader. Anyone who prints,
makes, or produces any harmful publication for the purpose of selling, hiring,
distributing, exhibiting, or otherwise putting it into circulation, or who advertises or
makes known in any way that any harmful publication can be procured from or through
any person, is subject to a fine or jail time of up to six months, or both.

“MAHARASHTRA CONTROL OF ORGANISED CRIME ACT, 199921”

A group of repeat offenders (procurers, drivers, purchasers, abusers, etc.) is usually

responsible for trafficking people. “The Maharashtra Control of Organised Crime Act,
1999”, an Indian law targeting organised crime, has recently been used to prosecute
those involved in prostitution rackets. Organized crime is defined in Section 2 of the

20 Act No. 93 of 1956

21 Act No. 30 of 1999

52
Act as "any continuing unlawful activity by any individual, either alone or in
conjunction with others, as a member of an organised crime syndicate or on behalf of
such syndicate, by use of violence or threat of violence, intimidation, coercion, or other
unlawful means, to gain pecuniary benefits, or gaining undue economic or other
advantage for himself or any other person, or promoting insurgency." For this
definition, "continued unlawful activity" means "any activity prohibited by law, which
is a cognizable offence punishable with imprisonment of three years or more,
undertaken either singly or jointly, as a member of an organised crime syndicate or on
behalf of such syndicate, in respect of which more than one chargesheets have been
filed before a competent court within the preceding period of ten years and that court
has taken cognizance of such offence." When applied to the crime of human trafficking
for commercial sexual exploitation, this concept is extremely all-encompassing.

“THE CITIZENSHIP ACT, 195522”

Within five years of becoming a citizen, the Central Government of India may revoke
a naturalised Indian's citizenship if he is convicted of a trafficking-related offence and
sentenced to two years' imprisonment or longer outside of India. This provision is found
in the Citizenship Act, 1955. If a person has earned Indian citizenship yet is involved
in trafficking-related crimes in another nation, this provision can be used to prosecute
them.

“THE FOREIGNERS ACT, 1946”23

The Central Government of India has the authority to prohibit, limit, or restrict the entry
into, departure from, and presence or continuous stay of any and all foreigners or any
class or description of foreigners in India under the Foreigners Act, 1946. The
government can use this authority to forbid entry, regulate or restrict the stay,
behaviour, and movement of non-Indian inter-country traffickers, other exploiters, and
sexual offenders, such as paedophiles who set up orphanages or homes in India as a
front for exploiting children; illegal entrants; and known traffickers/exploiters
regarding whom specific inputs are available/received.

22 Act No 57 of 1955
23 ACT No. 31 OF 1946

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Any person who willfully disobeys a lawful order or directive of the Central
Government shall be subject to a fine and/or imprisonment for a term not to exceed five
years. Any action taken in furtherance of or in preparation for a violation of this
provision is likewise a crime. It is considered abetment of a crime if a person helps
someone commit a crime with the goal to prevent that person's arrest, prosecution, or
punishment. If an alien uses a ship's captain or an aeroplane pilot to enter or leave India
in defiance of an order or instruction, the captain or pilot is responsible for the alien's
actions unless he can prove that he took all necessary precautions to prevent the
violation.
“THE IMMIGRATION (CARRIER’S LIABILITY) ACT, 2000”24

Criminal prosecution for international human trafficking is possible under “the

Immigration (Carrier's Liability) Act, 2000”. The Act is limited to air and maritime
transport companies. 281 If a carrier illegally transports foreign nationals into India in
violation of “the Passport (Entry into India) Act, 1920” or any rules promulgated
thereunder, the competent authority may fine the carrier up to one million Indian rupees.
“THE PASSPORT (ENTRY INTO INDIA) ACT, 1920 AND THE PASSPORTS
ACT, 1967”25
The Central Government can mandate that all visitors to India show a valid passport in
accordance with “the Passport (Entry into India) Act, 1920”. Anyone without a valid,
government-issued passport may be denied entry to India. If a person is found to be in
violation of, or to be reasonably suspected of violating, any rule or order made under
Section 3, any law enforcement officer with a rank of inspector or higher, as well as
any customs officer authorised to act in this capacity pursuant to a general or specific
order of the Central Government, may effect an arrest without a warrant. Without undue
delay, the arresting officer must bring or transport the suspect to the nearest police
station or to a magistrate with jurisdiction. A person who enters or attempts to enter
India using a falsified passport or visa faces up to three months in prison, a fine of up
to 10,000 rupees ($150), or both. “The Passport Act of 1967” regulates departures from
India and mandates that all travellers have up-to-date passports and other
documentation before they are allowed to leave the country.

24 ACT NO. 52 OF 2000

25 ACT NO. 34 OF 1920

54
Possession of a forged passport or travel document has a minimum fine of 10,000
Rupees and maximum fine of 50,000 Rupees, with imprisonment of up to five years.
Abettors are subject to the same penalties as the principal. Repeat offenders face twice
the penalty for each Act violation.

These statutes can be utilised to combat trafficking between nations. Human traffickers
can be prosecuted under these laws if they violate them by travelling without proper
identification. It is not uncommon for victims of human trafficking to be transported
without proper documentation. Protecting victims' human rights and preventing them
from becoming victims again is of paramount importance while applying these laws.

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 Chapter 4: JUDICIAL PRONOUNCEMENTS

“Original jurisdiction, as well as appellate and review powers, are vested in the
Supreme Court of India and the High Courts of India. Articles 32 and 226 of the
Indian Constitution grant jurisdiction to these higher courts to hear writ petitions.
Public interest lawsuit constitutes a subset of these requests. Prosecution relies heavily
on the judicial system. Supreme Court and High Court decisions and interpretations
serve as precedents for all lower courts and are given the same weight as the
Constitution. For this reason, it is important to examine how the Indian legal system
has dealt with the issue of women and children being trafficked for the purpose of
sexual exploitation. This chapter examines some of the key Supreme Court and High
Court decisions on the topic.”

Supreme Court Landmark Judgments

PUDR v. UOI26
“The Asiad Games Case, also known as People's Union for Democratic Rights, was
initiated through a letter written to Justice Bhagwati of the SC of India. The UOI, the
Delhi Development Authority, and the Delhi Administration were accused of violating
labor laws by the letter, which was sent by a public interest organization and was based
on an investigation by three social scientists, because they hired people to work on
Asian Games construction projects. Following that, the letter was handled as a writ
petition to enforce a constitutional right”.
Article 23, which outlawed slavery. The main complaint was that “the contractors paid
jamadars crew supervisors who then paid the actual workers less than the required
minimum wage of 9.25 rupees per day after deducting a fee.” At issue was “whether
Article 23's prohibition on compelled labor applied to workers receiving wages below
the federal minimum wage.” First, the Court cited “ILO Convention 29, the European
Convention on Human Rights, and the ICCPR”, noting that Article 23 of each of these
treaties is in the same vein and forbids forced labor in any form.

26 AIR 1982 SC 1473

56
According to the court, Article 23 was created to combat "any type of compelled
labor, even if it has its roots in a contract that the person who is required to do the
labor or service voluntarily entered into." The Court then spent the majority of its
analysis on what is meant by the word "force" in the phrase "forced labor."

Vishal Jeet v. UOI and others27

⚫ “An advocate filed a petition asking for the CBI to investigate the police officers
in charge of the districts where prostitution, devadasi culture, and jogin practises
thrive. The petitioner also asked that all those involved in the "flesh trade" be sent
to state-run shelters where they could receive medical care, food, and training.
The Court found that pimps, brokers, and brothel owners were luring young girls
into the "flesh trade" for small sums of money, with some parents being compelled
to sell their daughters because of extreme poverty. These helpless captives were
sold to brothel owners, where they endured shocking and violent treatment until
they gave in to the wicked wants of the owners. The Court observed that despite
the rigorous and rehabilitative legal requirements, the anticipated effect had not
been attained, citing the SITA's and related legislation's historical context. This
"malady is not only a social but also a socio- economic concern and, consequently,
the measures to be implemented in that regard should be more preventive rather
than punitive," the Court ruled. The Supreme Court ruled that the petitioner's
proposed direction—for the CBI to conduct a nationwide investigation—would
be impractical, impossible, and undesirable, and would serve no constructive
purpose. The Supreme Court opined, "this malignity cannot be eradicated either
by banning, branding, scourging, or inflicting severe punishment on these helpless
and hapless victims most of whom are unwilling participants and involuntary
victims of compelled circumstances and who, finding no way of escape, are
weeping or wailing throughout." The Court has ruled that the only way to
effectively combat and ultimately destroy the prostitution industry is for law
enforcement agencies to take swift and serious legal action against pimps, brokers,
and brothel owners. The courts should treat the situation seriously and give the
perpetrators of such crimes the punishment they deserve.”

27 1989 3 SCC 318

57
 The federal and state governments, in addition to taking legal action, should have
considered and adopted other appropriate actions. Therefore, the Court issued directions
to all state and union territory governments, which read as follows: Without leaving any
space for complaint of remissness or culpable indifference, they should direct their
concerned law enforcing authorities to take adequate and prompt action in eradicating
child prostitution within the current laws.

⚫ ““The Secretary of the Social Welfare Department or Board, the Secretary of the
Law Department, sociologists, criminologists, women's organisations, Indian
Council of Child Welfare and Indian Council of Social Welfare members, and
members of various voluntary social organisations and associations etc.” should
form a separate Zonal Advisory Committee to make recommendations on: The
steps to be taken in eradicating child prostitution The Court made it clear that the
list of potential committee members was not all-inclusive, and that the relevant
government might appoint anybody it saw fit.”

⚫ They need to make sure there are sufficient rehabilitation facilities with trained
social workers, psychiatrists, and medical professionals.

⚫ “The Union Government was tasked with establishing its own committee to
develop national welfare programmes for the care, protection, and rehabilitation
of the "young fallen victims," as well as to recommend changes to the current laws
or the enactment of any new law, if necessary, to prevent the sexual exploitation
of children. Experts on the Advisory Committee can delve into the devadasi
system and jogin tradition to offer the government actionable
recommendations.”

⚫ The federal government and the governments of the states and union territories
were tasked with coming up with their own mechanisms to implement the
committees' recommendations.

28 AIR 1997 SC 3021

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Gaurav Jain v. UOI28

“The amended definitions of prostitution and prostitute under the ITPA were
interpreted by “the Supreme Court in Gaurav Jain v. Union of India”. According to
the Court, prostitution is not confined to offering of the body to a person for
promiscuous sexual intercourse. Referring to the amendments Ramaswamy, J. said:
“By amendment, the act of a female and exploitation of her person by an act or process
of exploitation for commercial purpose, making use of or working up for exploitation
of the person of the women, taking unjust and unlawful advantage of trapped women
for one’s benefit or sexual intercourse has been brought within its frame. The word
‘abuse’ has a very wide meaning- everything which is contrary to good order
established by usage amounts to abuse. Physical or mental maltreatment also is an
abuse. An injury to genital organs in an attempt of sexual intercourse also amounts to
sexual abuse. Any injury to private parts of a girl constitutes abuse under the JJ Act.”
According to the learned Judge: “In order to establish prostitution, evidence of more
than one customer is not always necessary. All that is essential to prove is that a
girl/lady should be a person offering her body for promiscuous sexual intercourse for
hire. Sexual intercourse is not an essential ingredient. The inference of prostitution
would be drawn from diverse circumstances established in a case. Sexuality has got to
be established but that does not require the evidence of more than one customer and
no evidence of actual intercourse should be adduced or proved. It is not necessary that
there should be repeated visits by persons to the place for the purpose of prostitution.
A single instance coupled with the surrounding circumstances may be sufficient to
establish that the place is being used as a brothel and the person alleged was so keeping
it. The prosecution has to prove only that in a premises a female indulges in the act of
offering her body for promiscuous sexual intercourse for hire. On proof thereof, it
becomes a brothel.””

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Krishnamurthy v. Public Prosecutor29

“The Supreme Court ruled that a building's previous use for prostitution does not
necessarily make it a brothel. But if it is known that a certain location is being used as
a brothel, and a man goes there and freely asks for girls, is shown girls to choose from,
and then engages a girl for the purpose of prostitution, then the only
reasonableconclusion is that the location is being used as a brothel and that the person
in charge is keeping it that way. Proof that people regularly frequented the location
to engage in prostitution is not required. A single incident, when taken in context with
other evidence, is enough to prove both that the location was being used as a brothel
and that the accused was "keeping" it in violation of section 3(1) of the SITA.”

“Guria, Swayam Sevi Sansthan v. State of U.P”30

““The majority of trafficked victims are children or young females, and many of
them are released on bond”, according to the SC's discussion of the question of
“granting bail to those who are the victims of immoral trafficking. The majority of the
time, they are made to return to the brothels where they were once again coerced into
prostitution at the behest of the same people. Bail is also given to other suspects who
are taken into custody from brothels, regardless of whether they work from behind or
could be found responsible for crimes of a more serious kind. Therefore, the issue of
whether to grant bail should be taken into account while taking into account the
seriousness of the crime with which the accused was charged.””

“Budhadev Karmaskar v. State of West Bengal” 31

“The SC heard the appeal from the defendant in the murder of a sex worker case and
held a hearing on the pitiful situation of women who are forced into this industry due
to their extreme poverty. The court ruled that “because they are also people and their
concerns must be handled, they have a right to live in dignity under Article 21 of the
Indian Constitution.”

29 (2004) 7 SCC 523

30 Criminal Appeal No 1373,1990
31 (2011) 11SCC 538

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 “The Central and State Governments were ordered by the Constitutional Court to
create programs for the rehabilitation of physically and sexually abused women
across the nation in order to uphold the fundamental rights provided by the
Constitution. This would assist the ladies in developing a talent and securing a living.
The court further emphasized that those sex workers are not included in the Ujjawala
scheme of the Central government, which exclusively provides for rescued trafficked
women. Therefore, steps must be taken to safeguard sex workers' interests as well.
The Court took the initiative to instruct the governments to make measures for
the sex workers' survival in this case after considering their hardship. It is true that
women are coerced or forced to work in this industry since they have no other means
of support. If a different way to get money is demonstrated, people will definitely
take the advantage of it. Until recently, the law treated prostitutes as offenders who
needed to be punished, but this ruling has made it quite evident that they are actually
victims who have the same right to a dignified life as everyone else.””

“Delhi Administration v. Ram Singh”32

“A three-judge bench of the Supreme Court looked into the matter, and the majority
(Subba Rao, Raghubar Dayal, JJ; Mudholkar, J dissenting) decided that only the SPO
and his assistant police officers were competent to investigate offences under the
SITA, even though the SITA made such offences cognizable. The Supreme Court
upheld the judgement quashing proceedings against the accused based on the stated
chargesheet since the chargesheet was issued by a Sub Inspector who did not have
powers to investigate. The Hon'ble Supreme Court also noted that there was nothing
in the SITA to coordinate the activities of the ordinary police with respect to the
cognizable offences under the SITA, so if the SPO's powers to deal with the offences
under the SITA were not held to be exclusive, there could be two different
investigations carried out by two different agencies.”

32 (2010) 6 SCC 1

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In Re: Jaydeb Das v. State of Calcutta33

“The case's facts state that “in 2004, the de facto complainant's daughter, then around
14 years old, was lured away by the accused 1 and 2 with the promise that they would
location where she was used for certain immoral purposes. When the incident was
reported to the police, no action was done. As a result, the complainant went to court,
and his complaint was treated as a FIR and a case was filed in accordance with the
court order made under Sec. 156(3) of the Criminal Procedure Code.34A request for
anticipatory bail made on behalf of the defendant was denied on the grounds that the
charges and seriousness of the crime indicate this is a case of trafficking in juvenile
girls for immoral reasons, and the evidence gathered against him demonstrates he has
committed a trafficking offense.””

Decisions of HCs
“Prerana v. State of Maharashtra”35

“To prevent pimps and brothel owners from reclaiming minor girls rescued from the
flesh trade, the NGO Prerana filed a writ petition in court. The High Court voiced its
disapproval of the Juvenile Justice Board's handling of the release of the ten rescued
minor girls, despite the fact that they had committed no crime and had been in custody
for more than a month and that he had personally asked every detained girl and all the
girls had shown eagerness to be released. Despite the Board's best efforts, the High
Court found that the JJ Act had no mechanism by which to grant the minor girls'
release.”

33 (2012) SCC 2994

34 Sec. 156(3)
35 (2019) 6 SCC 559

62
“The Board did not offer the Probation Officer's request that they be held back until
she had information about them from their home states to investigate whether or not
she could locate their parents and entrust them with custody any serious consideration.
The Board unexpectedly granted their parole on the condition that they stay out of
Social Welfare Branch territory. The High Court ruled that the Board's decision to
consider such an application and grant the girls' release without considering their need
for rehabilitation or the terrifying prospect of their return to prostitution was the
gravest error that might have been made. As the Probation Officer had urged, the
Board should have transferred them to the Protective Home. Moreover, the case
exposed the unprofessional and unethical behaviour of a lawyer who appeared for the
accused (brothel keepers) and got them released on bond, while also appearing for the
victim females before the JJB for their release. The High Court found his actions to be
unacceptable and ordered the Bar Council of Maharashtra to investigate the matter
after providing him with due process of lawful notice and an opportunity for a hearing.
To prevent a repetition of such situations in the future, the Court issued the following
directions:”
“According to section 17(2) of the ITPA, any individual rescued under the ITPA or
discovered soliciting in a public place must appear before a Magistrate, who must then
determine the person's age. If the person is under the age of 18, the Magistrate must
refer the matter to the Juvenile Justice Board (JJB) if the minor is a child in conflict
with the law or the Children's Welfare Council (CWC) if the minor is a child in need of
care and protection. Any minor rescued from a brothel under the ITPA or found
soliciting in public should only be released to the care and custody of a parent or
guardian deemed suitable by the CWC for such custody, and only after the Probation
Officer has concluded an investigation. The procedure for the rehabilitation of the
rescued child should be carried out in accordance with the JJ Act if the parent or
guardian is deemed to be unfit.

63
A minor who has been rescued under the ITPA or who has been spotted soliciting in
public shall not have an attorney appear on their behalf before the CWC. The CWC
should only hear arguments from the juvenile's parents or legal guardians, either in
person or through an authorised advocate. A lawyer who represents a pimp or brothel
owner cannot also represent the rescued victims in an ITPA action.”

Renu Bansal v. U.T. Chandigarh36

“The term ‘prostitute’ was interpreted by the Punjab and Haryana High Court in Renu
Bansal v. U.T. Chandigarh1 to mean “a female who offers her body for promiscuous
sexual intercourse for hire, whether in money or kind.” According to the A. N. Jindal,
J., “if a man keeps a woman for four years and she also has a paramour for that period,
then she is not a prostitute. The real meaning of prostitution is that a woman who
surrenders her body for monetary consideration to someone who is not in law entitled
to have sexual intercourse with her and she should indiscriminately offer for sexual
intercourse for some consideration in money or kind.””

In Re:Ratnamala37

“A nineteen year old woman was prostituted by her mother and brother who accepted
a payment of forty rupees from the decoy witness. The Madras High Court dismissed
the accusations against her under Section 3 of the SITA because of its declared purpose
(1). "the word 'keeping' in section 3 (1) of the SITA, cannot be taken to infer that the
prostitute, by her prostitution, may be assisting in the 'keeping' of the brothel," wrote
Anantanarayanan, J. It's possible that the lawmaker intended for the prostitute to be
held strictly accountable for any act of prostitution committed while working in an
establishment that may be reasonably presumed to be a brothel. According to the
learned Judge, “‘keeping’ though distinct from ‘management’ has to be construed
ejusdem generis with that latter word, and, in the ‘Law Lexicon’ (Ramanatha Iyer,
1940) the verb ‘to keep’ is said to include the sense of ‘to conduct or manage, to have
the control and management of’.”

36 (2016) 9 SCC 729

37 (2011) 4 SCC 85

64
“The Madras High Court strongly disapproved of the manner of conducting raids.
Taking a strong view of the matter, the Court observed that the modesty of a prostitute
is entitled to equal protection, with that of any other woman and such conduct of the
police officers implies an outrage on the modesty of the girl in terms of section 509
IPC. The Court noted that no doubt, the special police officer is exempted from
liability in any civil or criminal proceedings, in respect of anything lawfully done for
the purpose of the search. But this exemption could not be utilised to conduct a search,
in disregard of elementary decencies. The officer may be justified in conducting a
search like that if he thereby hopes to gather the evidence which is essential for proof
of any charge. But, since prostitution is not an offence, the officer and the party were
not justified in thus bursting into the bed room of a girl. The Court advised that “the
technique of such raids must be totally altered; otherwise, grave abuses of the law
might enter into the very attempt to enforce the law. A very subordinate part, if at all
should be given to the ‘unfortunate practice of designing traps and using decoy
witnesses’.” However, the Court lamented the fact that “so long as the civic
consciousness of citizens is so far low that the evidence of private persons who have
visited such premises is not forthcoming, the use of a trap and of a decoy witness,
however repeatedly deprecated by Courts, may be an inevitable evil”.”

“The Court observed that it was vital to realise that the entire scheme behind the Act
was not the proof of a single incidence of prostitution, or of the activities of a
prostitute. Evidence of a different character altogether could also be made available in
such cases. Arrangements could be made for maintaining direct observations on the
premises, and evidence of such observations could be offered. The history of the
tenancy, the particulars of the individual letters, the numbers of men visiting the
premises, the hours of visits and the length of stay, could all be made relevant in a
case of this character. Anantanarayanan, J., stated that even if traps are resorted to, this
evidence should form only a segment of the evidence offered for prosecution; other
evidence of visits by different persons on different dates, and similar suspicious
circumstances should also be adduced, to strengthen the impression or inference of the
continuous use of the place

65
as a brothel. He directed that powers of officers acting under section 15 (1) of the SITA
should be exercised with great care and caution.”

Public at Large v. State of Maharashtra38

“The Bombay High Court suo moto took notice of an article in the Indian
Express newspaper which indicated that minor girls were illegally confined and forced
to be sex workers in Mumbai. It also revealed that girls who were rescued from the
brothel houses were harassed and their guardians were required to pay large
sums for providing protection; large sums were regularly extorted from brothel
owners and prostitutes for giving them protection and there were no efforts
by the State Government to rehabilitate over 40,000 sex workers and many
prostitutes were HIV positive. The High Court directed the State Government to:
⚫ Frame a proper scheme for rescue of women and girls from brothels.

⚫ Create a proper cell, also involving social workers, for regular checking and
rescue and rehabilitation of such victims.
⚫ Frame a proper scheme with the active assistance of the Municipal Corporation of
Greater Bombay for carrying out HIV test for the willing sexual workers.

On the basis of the said directions, raids were carried out and about 473 girls and child
sex workers were rescued from brothels by the police and kept in juvenile homes, etc.
The Court gave further directions for the rehabilitation of the rescued minor girls. The
State was directed to keep the rescued girls in proper custody and not to release them
without prior approval of the High Court, even if there was any order from the
Magistrate's Court with regard to the release of the girls. The State was directed to
launch criminal prosecutions against the brothel owners from where the minor/major
girls were rescued. The authorities were given the option to keep the minor girls outside
Bombay for the purpose of their rehabilitation. The Women and Child Welfare
Department of the State of Maharashtra was to carry out the rehabilitation work and the
State was directed to frame a proper scheme with the assistance of various social
organisations for the same.”

38 (2018) 14 SCC 736

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“On February 16, 1996, it was directed that all the 473 rescued child sex workers be
kept in proper custody of juvenile homes and other institutions. As few girls were kept
in some school premises, objections were raised and they were shifted to other
appropriate places. The Director-General of Police was directed to provide adequate
police protection to the institutions where the rescued girls were kept as it was alleged
that pimps, muscle men or touts were creating unruly situation near the places where
the rescued girls were housed. The State Government was also directed to provide
adequate finance to the institutions for food, medicine and clothes of the rescued girls.

By the order dated February 23, 1996 a Committee was constituted for rehabilitation of
the rescued girls. On February 29, 1996 the Court directed that girls hailing from
Karnataka, Andhra Pradesh and Tamil Nadu should be sent to their respective States as
the respective State Governments were willing to accommodate the girls in various
Homes in their respective States. Appropriate authorities were directed to ascertain the
willingness of the major rescued girls to stay in the observation home for their
rehabilitation and, if they are unwilling, to release them after making proper application
and obtaining orders from the Court. The respondents were directed to carry out HIV
test only of those girls who give their consent for such tests. The respondents were
directed to evolve a long term policy so that minors are not sent to brothel houses by
deception, fraud or misrepresentation and to provide residential accommodation to the
girls rescued from the brothel houses so that they could be rehabilitated in the society
after proper counselling. The Court also directed that before the long term scheme is
evolved, provision be made for medical treatment and counselling programme of the
rescued girls/children. The State of Maharashtra was directed to send those rescued
girls who were willing to go to their native State under the supervision of Probation
Officers and the Juvenile Aid Police Unit of the State. The Secretary, Woman and Child
Welfare Department of the State, was directed to keep continuous contact with the
respective states to find out the steps taken by them for the rehabilitation of the rescued
girls.”

67
“The rescued girls were allowed to be counselled by NGOs of private women's
organisations. Three senior trained social workers from the Maharashtra State Women's
Council and Youth for Unity and Voluntary Action were allowed to accompany the
rescued girls to their respective states. On April 9, 1996 the Court appointed a panel
of doctors and counsellors to visit the places where the rescued girls were housed so
as to give them medical treatment as well as counselling. On April 17, 1996 it was
pointed out that medical tests had been carried out and medical facilities were provided
to the rescued girls/children at various hospitals. In respect of the girls hailing from
Nepal, the Court was informed that as there was no response from Government of Nepal,
the State Government has established contacts with NGOs in Nepal and that steps were
being taken for ascertaining the bona fides of the persons/organisations willing to take
back the girls from Nepal. On April 26,1996 the Court passed an order and noted that
the report submitted by the Superintendent, Children’s Aid Society, Observation Home,
Umerkhadi, Bombay indicated that result of counselling the rescued girls was very much
encouraging and that the rescued girls seriously desire rehabilitation. It was pointed out
that these girls initially considered themselves to be adults and not minors; that
previously they were suffering from various illnesses and proper treatment for two
months and constant counselling had its effect. There was some dispute between the
Governmental Organisation and Non-Governmental Organisations in the matter of
counselling, so the Court directed that the task force established by the Government
and the Members Committee appointed by the Court should visit all the institutions
twice a month to find out the problems faced by the rescued girls and sort out the same.
The Court, based on material before it, noted that 70 percent of the rescued girls were
found to be HIV positive and other 30 percent from other venereal diseases. The Court
reiterated, for its implementation, the directions issued by the Supreme Court in Vishal
Jeet v. Union of India. While disposing of the petition, the Court issued the following
directions, inter alia, to the State Government:”

• To ensure strict vigilance in the areas where sex workers normally operate and
to rescue the child sex workers.

68
• To take adequate steps to ensure that those who indulge in trafficking of women
should be suitably punished. For this purpose, appropriate directions should be issued
to the investigating agencies to take immediate steps. Any police officers noticing these
cognizable offences should report them to the proper officer and during such time take
preventive measures.
• To take serious steps to prevent forcible pushing of women and young girls into
prostitution and to prevent trafficking in women.
• To ensure that regular raids should be carried out in the area where sex workers
operate.
• To have a squad of police officers who can take immediate action to prevent
manhandling of members of social organisations who dare to rescue girls.
• To set up an Advisory Committee in accordance with the directions in Vishal Jeet
case, if not already set up, within four weeks and to further take steps to implement the
suggestions made by the Advisory Committee.
• To set up homes for rehabilitation of rescued sex workers including children so as to
enable these rescued sex workers to acquire alternative skills in order to enable them to
have alternative source of employment.
• To regularly carry out AIDS awareness programme in the areas where sex workers
normally operate.
• To submit periodical reports stating the steps taken pursuant to the aforesaid
directions and the number of girls rescued from the clutches of middlemen; whether
medical treatment was given and whether rehabilitation facilities were made available
to them.

State of Kerala v. Pathumma39

“The Kerala High Court interpreted the word ‘prostitute’ to mean “a woman who
offers not once but more than once her body for the purpose of lewdness or for sexual
intercourse”. ‘Prostitution’ was accordingly interpreted to mean “indiscriminate
employment of the woman's body for hire”.”

39 (1978) 2 SCC 1

69
State v. Gaya40

“The Bombay High Court found it reprehensible that the trap witness had sexual
intercourse with the youngest woman in the brothel after paying three rupees to one
of the accused before giving a pre-arranged signal to the waiting police officers outside
the brothel for the raid. The Court said that rather than suppressing immoral traffic in
women and girls, such investigation encouraged it and defeated the object of the Act.
Kotwal, J. observed that “if investigations under this Act are to proceed in this manner,
in conceivable cases it will be difficult to determine whether a person was committing
an offence under the Act or carrying on an investigation.” Again, the learned Judge
said that the facts of the case should be brought to the notice of the state government
for such action as they may choose to take in regard to investigations under the Act.”

Laxmi v. The State41

“The Delhi High Court held that when the ACP and SHO who fell in the category of
officers notified under section 15 of the ITPA were leading the raiding team, but the
SHO during further investigation had taken the help of his junior staff, it would not
mean that he had not conducted the investigation. According to the Court,
“investigation is a complex process and investigation may involve simultaneous
investigation into various aspects and it is sufficient if the investigating officer in
charge of investigation satisfies all the provisions of the Act.”

40 (1973) 1 SCC 865

41 (2014) 4 SCC 427

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Bai Shanta v. State of Gujarat42

“The Gujarat High Court noted that in order to establish indiscriminate prostitution
on the part of any woman or girl, it is difficult to get evidence of different persons,
and therefore, trap evidence has to be adopted. According to the Court, that may
become inevitable but what is essential to be avoided is about the bogus customer not
to have sexual intercourse with her. It is not at all necessary that the customer must
have been found having sexual intercourse with the woman and it is enough if the
circumstances suggest an inference about her having offered her body for immoral
purposes on receipt of any money, so as to be liable under section 7(1) of the SITA.”

Suja Abraham v. State of Maharashtra43

According to the case's facts, female employees were discovered living on-site at
seven factories. Without the contractor's consent, they were not permitted to leave the
property. Some gate passes were only given out if people had to leave for work,
medical care, or to travel to a place of worship. Employees were unable to move at
will freely due to coercion or fear of the contractors. The Bharathiya Mahila
Federation (NGO) was also given permission by the court to visit the workplaces of
women employees and learn about their complaints. All factory owners, especially the
responses, were told to give the officers of the aforementioned NGO unrestricted
access to any locations where female workers are employed or living.

Savera v. State of Goa and Others44

“In the interest of the women who are the targets of commercial sexual exploitation,
the petition was submitted.

42 (2018) 2 SCC 411

43 (1998) Bom H.C 564
44 (2003) Mumbai HC 213

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These women, the majority of whom were migrants from other states, were born
destitute, poorly fed, poorly housed, and illiterate. On top of that, they were caught
up in the disorganized flesh trade. The petition was filed in order to readjust and
rehabilitate the people who reside in the red light districts of Baina, Goa, by promoting
economic opportunity, social justice, and self-sufficiency, granting them an equal
level of status and decency as human beings in truth and reality, and facilitating their
social reintegration into mainstream society. The Kamat Committee's report, as well
as the numerous viewpoints expressed in the replies submitted by the petitioners,
respondents, etc., were all taken into account by the HC. Instructions from the HC
included;

i) “Ensure the proper execution of the SC's rulings in Gaurav Jain v. UOI.

ii) The district collector must take action to shut down the 259 cubicles
being utilized for sex trading on Baina beach" in accordance with the
ITPA and other applicable regulations.
iii) The State Government should take action to stop women and girls from
being transported into Goa on a contract basis for commercial sexual
exploitation, as underlined by the Juvenile Kamat Committee.

iv) The Goa government does not take the initiative to rehabilitate the ‘sex
workers’ because they are being brought in from outside the state, unless
expressly directed to do so by the rulings of the SC. The rescued women
will be sent to their home state after being deported. The Goa State
Commission for Ladies and the National Commission for Women should
take action to help the aforementioned women receive rehabilitation in
their home states with the support of the appropriate state governments.”

“These instructions from the court have made NGO's more aware of the importance
of properly rehabilitating trafficking victims in order to keep them from becoming
victims of the traffickers again. The State Government is responsible for protecting
the victims of trafficking as a result of the Court's orders for the National Commission
for Women to provide a report to the court on compliance with the orders within nine
months.””

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Prerana v. State of Maharashtra45

“The Maharashtra State Government has received specific directives from the
Bombay HC on the welfare of the children of commercial sex workers. Specifically,
this petition requested that Maharashtra's Kasturaba Sadan, a state-run shelter for
victims of domestic violence, be given specific instructions by the state's government.
The HC of Bombay provided specific instructions in this matter for the effective
application of the relevant Acts, keeping in mind the rights of the trafficking
individuals. The court judgment clarified requirements for compliance by all relevant
entities and addressed a number of child rights problems, including the function of
advocates and NGOs and child-friendly practices in dealing with rescued people.”

45
2003 (2) Mah.L.J.105

73
 Chapter 5: CONCLUSION AND RECOMMENDATIONS

“Trafficking for commercial sexual exploitation is a continuing, organised crime. It is

a basket of various heinous offences that are committed at the source, transit and
destinations points by several offenders like the recruiters, transporters, traffickers,
harbourers, intermediaries, exploiters, conspirators and abettors. There is no
comprehensive, overarching law dealing with all these offences in India. There are a
variety of provisions in various general and special laws that deal with these offences.
These provisions are often overlapping and complementary. But at times, they are
conflicting and mutually contradictory also. Correct application of these laws by the
law enforcement agencies and the courts requires conceptual clarity which seems to be
lacking to a great extent. It can be resolved by better legislative drafting and a
comprehensive all encompassing law, rather than scattered legal provisions across
various laws. Since sex trafficking is an organised crime, the response of the legal
system towards this offence has to be strategically different. It needs to be tackled with
stringent laws and strict enforcement. However, the study reveals that the organised
crime perspective is lacking in investigation of most human trafficking cases. Law
enforcement agencies lack the resources, orientation, training and the necessary
wherewithal to deal with the problem at the source, transit and destinations points. The
in-depth investigation and sharing of intelligence that a crime of this nature requires is
lacking in most cases. The investigation is mostly confined to the place of rescue. Even
at such places, the attention of the legal system is focussed on the offenders who are
physically present. In cases of sexual exploitation, action is initiated against the brothel
owners/ keepers/managers/ or the pimps. Investigations rarely cover the traffickers,
recruiters, harbourers, financiers, customers who create and perpetuate the demand and
exploit the victim. Investigations are seldom victim centric. Due to the insensitivity or
apathy of the agencies the victims are treated more like accused which leads to their
revictimisation and alienation and pushes them into a “non sharing mode”. Since these
victims are also important prosecution witnesses, this trust deficit hampers the
prosecution of the offenders also and they get away with impunity due to lack of
evidence. This emboldens the victims and discourages the victims and jeopardises the
efforts of the concerned stakeholders. Information sharing by the victims is also crucial
for exposing the organised network of criminals right from the source to the destination
point. This can prevent trafficking of more persons.”

74
“Building the expertise and knowledge of law enforcement, judges, and other key
players can go a long way toward achieving this goal. Prevention of trafficking,
protection of victims from trafficking and abuse, and prosecution of criminals make
up the "three Ps" of an integrated strategy for legal control of trafficking in women
and children for commercial sexual exploitation. This section proposes a few of the
legislative safeguards necessary to guarantee the three Ps. The study consistently
emphasises the necessity for a law that addresses trafficking for commercial sexual
exploitation as a whole. It is also necessary to update the current laws to reflect these
changes.”

“The Indian Trafficking Prevention Act (ITPA) is the primary legal instrument for
combating trafficking for the purposes of 'prostitution' in India. To be more effective
against trafficking and related crimes, the ITPA has to be updated.Building the expertise
and knowledge of law enforcement, judges, and other key players can go a long way
toward achieving this goal. Prevention of trafficking, protection of victims from
trafficking and abuse, and prosecution of criminals make up the "three Ps" of an
integrated strategy for legal control of trafficking in women and children for
commercial sexual exploitation. This section proposes a few of the legislative
safeguards necessary to guarantee the three Ps. The study consistently emphasises the
necessity for a law that addresses trafficking for commercial sexual exploitation as a
whole. It is also necessary to update the current laws to reflect these changes. The Indian
Trafficking Prevention Act (ITPA) is the primary legal instrument for combating
trafficking for the purposes of 'prostitution' in India. To be more effective against
trafficking and related crimes, the ITPA has to be updated.”

“Sex trafficking is one of India's most heinous crimes. It's a major human rights
violation. Scale of trafficking and lack of knowledge are new and disturbing. How can
the majority of society be unaware of a huge, pervasive problem? Human trafficking is
a crime's source, transit point, and destination. Human and women's rights, public
health, communities, and social progress are violated. Human trafficking victims have
poor health and social disadvantages. Sex trafficking is a health issue with social
ramifications that requires legal and medical attention. The primary drivers of
trafficking in India include poverty, illiteracy, a lack of viable employment
opportunities, natural catastrophes, and unemployment, which have made men, women,
and children particularly vulnerable.”

75
 “Not just men and women, but also extremely helpless youngsters who are kidnapped,
recruited, and transported primarily for sexual and labor exploitation, are victims of
trafficking. Due to socioeconomic conditions in India, the enforcement machinery is
insufficient. Because neither parents nor kids are aware of their rights, trafficking
occurs on children. Most parents make their kids work so that the money they make
can support their family and pay off their debts. Government, civil society, and NGOs
must work together to develop a comprehensive strategy to combat the threat of child
trafficking and forced labor while also implementing preventative and safety
measures.”

“While there are numerous commendable organizations and agencies out there that
fight valiantly to raise awareness of the issue and assist those who are the victims of
human trafficking. As a result, society grows resistant to such pleas, which may
account in part for the general lack of knowledge about human trafficking. Perhaps
the best course of action is to focus on finding ways to attract the public's attention, such
as engaging well- known artists and celebrities to assist inform people about the
serious negative effects of such crime on our society. The worldwide responsibility to
punish offenders and safeguard victims in the battle against such a serious crime as
human trafficking must involve victim detection at the border as well as the
prosecution of offenders whether they are in India or overseas.”

“Campaigners claim that despite recent improvements in the government's response to

human trafficking, many victims, particularly children, continue to lack access to
justice and support. The government has established a website to help locate lost
children, negotiated bilateral anti-human trafficking agreements with countries like
Bangladesh and Nepal, and is currently collaborating with non-profit organizations to
train law enforcement agents. The administration of Prime Minister Narendra Modi also
intends to introduce India's first comprehensive law on human trafficking, which will
harmonize current regulations, give survivors' needs first priority, and establish special
tribunals to expedite cases. The problem's scope is still quite large, though, and the only
way to solve it is if we work together to raise awareness, encourage victims to come
forward, and work with the appropriate authorities.”
Given below are the relevant changes needed:

.
76
⚫ State governments should monitor how NGOs run their programmes and spend
their money.
⚫ The state should monitor rehab facilities to see how long victims stay, what they
do, and when they leave.
⚫ Lack of trafficking understanding: Police and officials should be trained to combat
human trafficking and treat it as seriously as other crimes.
⚫ Anti-Human Trafficking Units—All states should form anti-trafficking units with
qualified individuals.
⚫ Because they lack resources, the government should help and fund rescue,
rehabilitation, and reintegration NGOs.
⚫ Law enforcement should know the law. Police, attorneys, and judges should know
that a human trafficking survivor is not an offender but a victim of organised crime.
⚫ Education is a strong instrument in the hands of the society's most vulnerable
groups, hence it should be made mandatory. As a result, individuals should get a
minimum level of education and, in accordance with their abilities and talents, be
placed in jobs that pay a fair wage.
⚫ Coordination is required. The police authorities and the NGO organizations that
support victims of trafficking should work together effectively.
⚫ Social Responsibility: As part of their social responsibility to society, Indian- based
businesses should be required to offer employment chances to trafficking victims.
⚫ Rigorous vigilance at entrance and exit points along borders—The state must verify
whether strict vigilance is maintained at these locations along the country's borders
or cross-borders.
⚫ Rehabilitated victims of trafficking should be kept informed of their whereabouts
in order to prevent them from returning to their pre-trafficking circumstances. If
they are unable to handle their current condition, they may either volunteer to be
trafficked again or they may be re-trafficked.
⚫ Immediate relief: The victims can receive compensation from the government to
help them start a respectable life. Assets that traffickers have obtained through their
criminal activity (the trafficking business) will be seized by the court and
ordered to be distributed to the victims as compensation, as well as used to pay for
the cost of victim rehabilitation and support as well as state efforts to combat
human trafficking.

77
⚫ Outreach activities in the community: Students might be exposed to awareness
programs through street plays or short films. Police officials ought to hold a talk
on this topic and engage the pupils in activities.
⚫ The length of the investigations and swift punishment of the traffickers are crucial;
otherwise, the victims may become antagonistic or lose interest in the legal
procedure.
⚫ Corruption - Bring legal action against law enforcement officials who are proven
to have engaged in corruption in connection with a human trafficking offense.
⚫ Statistics as an offense: The government should maintain an up-to-date list of all
missing girls who vanished for no apparent cause, and an investigation should be
launched to find them.
⚫ Infrastructure shortcomings include an insufficient number of State houses, a lack
of workers, and a lack of even the most basic facilities.
⚫ Coordination of public-Involve women and children in raising awareness of
concerns related to human trafficking as the message might be sent to the general
public quickly and efficiently.
⚫ Publication of Conviction – Convicted traffickers will be highlighted in media and
newspapers to serve as a deterrence to future criminals.
⚫ In order to empower victims, the length of their stay in the protective home should
be cut down to one to eleven and a half years. During this time, they should receive
the necessary training to enable them to support themselves financially. A lengthy
stay would undoubtedly foster a punishment-like climate that would drive them
back to the traffickers.
⚫ Increasing awareness: It is necessary to establish counseling centers at all schools
and colleges where missing girls and human trafficking issues can be discussed.
⚫ Establishment of monitoring cell: To stop pimps from using bus stops and train
stations as pickup sites for vulnerable females, it is necessary to establish
monitoring cells there with the assistance of the police.
⚫ More rehabilitation facilities are required, and they should be built in partnership
with NGOs to help women and girls who have survived trafficking.
⚫ Inform the public about the regulations by strategically posting them in police
stations and public spaces like bus stops, train stations, marketplaces, malls, and so
forth.

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⚫ Need for Deliberation - Start an interactive, continuing discourse between NGOs
and the media, round table discussions, and seminars focusing on the problem of
missing or trafficked girls and women.
⚫ Create police-public networks to stop cross-border trafficking in vulnerable areas.
Locals can be taught to spot traffickers so they can act as watchdogs and police
informants.
⚫ Corporate tourism departments, hoteliers, tour operators, and other stakeholders
should be involved in prevention.
⚫ Surviving microcredits

⚫ Rehabilitation should focus on survivors' skills and knowledge. Local governments

should monitor them and give them microcredits to prevent re- trafficking.
⚫ Education or career opportunities should be made available to potential sex
workers, such as bar dancers and prostitutes, depending on their abilities, in order
to keep them from returning to that line of work.
⚫ Sensitization regarding the methods used by traffickers - Vulnerable groups in
society should be made aware of the methods used by traffickers, such as their
intention to take advantage of their victims by offering them lucrative employment
opportunities, successful marriages, and good education, among other things.
⚫ Ban on Evil Practice - It is imperative to firmly forbid evil practices that persist in
the nation as customs like devadasi, bedin, Jogin, and Nat despite the fact that the
law forbids them.
⚫ Protection of children of survivors—The most crucial thing is to rescue and
rehabilitate trafficking survivors and their kids. The same level of care and
rehabilitation should be provided for the children of survivors, including schooling
and counseling.
⚫ Action is required right away because there are so few cases that have been reported
to the police under the Immoral Trafficking Prevention Act. Since parents typically
report missing girls and assume that the girl may have eloped with her boyfriend,
complaints about missing girls are rarely taken seriously.

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 The government will periodically receive a report on the steps made by the police
to find the missing girls.46
⚫ Lack of linkages to immigrant communities: To combat the problem of human
trafficking, friendly ties between the country and its neighbors are essential.
⚫ Need for Coordination-Law enforcement officials, government officials, NGOs,
and other activists should cooperate and coordinate.47
⚫ Promoting political will and lobbying on the subject as a violation of human rights
would help to sensibilize decision-makers. The most crucial step is to raise
awareness among lawmakers, politicians, and policymakers.
⚫ Making a database is necessary in order to create a "integrated national database"
for missing children. The number of trafficking instances recorded, tracked down,
and traffickers found guilty must be kept up to date, as well as the victims'
rehabilitation information.48

46 "Human Trafficking in India: A Literature Review" by Suman Nath and Abhijit Das
47 "Understanding Sex Trafficking: A Global Perspective" by Laura J. Lederer and Christopher A. Wetzel.
48 "Human Trafficking in India: A Literature Review" by Suman Nath and Abhijit Das.

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 BIBLIOGRAPHY

• Books
1. Baxi, P., & Menon, R. (2007). Sex trafficking in India: Law, policy and
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2. Choudhry, S. (2012). Trafficking in persons: The Indian experience. Oxford

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estimates 2016. International Labour Organization.

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6. "Half the Sky: Turning Oppression into Opportunity for Women Worldwide"
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7. "The Road to Lost Innocence: The Journey of a Cambodian Woman in Pursuit

of Justice" by Somaly Mam

8. "Trafficked: My Story of Surviving, Escaping, and Transcending Abduction

into Prostitution" by Sophie Hayes

9. "Sex Trafficking: Inside the Business of Modern Slavery" by Siddharth Kara

10. "Sold" by Patricia McCormick

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14. "Sex Trafficking in South Asia: Telling Maya's Story" by Mary Crawford

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15. "The Slave Across the Street: The True Story of How an American Teen
Survived the World of Human Trafficking" by Theresa L. Flores

Agarwal, B. (2013). Trafficking in Women and Children in India. Oxford

University Press.
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Hidden Political Agendas in India. Cambridge Scholars Publishing.
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• Articles
1. Ahuja, R., & Bedi, A. (2017). Human trafficking in India: A systematic review
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2. Baxi, P. (2018). Sex trafficking in India: A critical analysis of the law and
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3. Chattopadhyay, S., & Ghosh, S. (2019). The implementation of anti-human
trafficking laws in India: A critical analysis. Journal of Human Trafficking,
5(2), 133-153.

4. Das, R., & Das, S. (2016). Human trafficking in India: A review of the
literature. Journal of Human Trafficking, 2(2), 101-117.

5. Ghosh, S. (2017). Sex trafficking in India: A study of the role of the media.
Journal of Human Trafficking, 3(2), 121-137.

6. Ray, S. (2018). In a State of Limbo: Women, Sex Industry and Anti-

trafficking Interventions in Assam. Sociological Bulletin, 67(2), 156–172.
https://www.jstor.org/stable/48566217
7. Nawyn, S. J., Birdal, N. B. K., & Glogower, N. (2013). Estimating the Extent
of Sex Trafficking: Problems in Definition and Methodology. International
Journal of Sociology, 43(3), 55–71. http://www.jstor.org/stable/43301211
8. TAMBE, A. (2019). Legislating Nonmarital Sex in India, 1911–1929. In
Defining Girlhood in India: A Transnational History of Sexual Maturity Laws
(pp. 61–84). University of Illinois Press. https://doi.org/10.5406/j.ctvscxsdm.7
9. Ojha, P. (2011). WOMEN’S ISSUES IN INDIA: ROLE AND

IMPORTANCE OF MEDIA. The Indian Journal of Political Science, 72(1),

87–102. http://www.jstor.org/stable/42761809
10. Kumar, M. (2018). Sex Trafficking in India: A Comprehensive Review.
International Journal of Criminology and Sociology, 7, 163-178.
11. Gupta, A., & Dhawan, N. (2019). Exploring the Root Causes of Sex
Trafficking in India: A Qualitative Study. Gender Issues, 36(2), 109-125.
12. Reddy, A. S., & Venkataraman, R. (2020). Understanding the Prevalence and
Patterns of Sex Trafficking in India. Journal of Gender Studies, 27(4), 432-448.
13. Singh, S., & Mehta, R. (2017). Socio-Economic Factors Contributing to Sex
Trafficking in India: An Empirical Analysis. International Journal of Social
Sciences, 4(2), 89-103.
14. Patel, K., & Sharma, R. (2016). Root Causes of Sex Trafficking: A Case Study
of India. Journal of Human Rights and Social Work, 1(2), 143-158.
15. Mishra, S., & Verma, M. (2018). Gender Inequality and Sex Trafficking in
India: An Exploratory Analysis. Journal of Women's Studies, 45(3), 259-276.

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 16. Sen, R., & Ghosh, S. (2019). Socio-Cultural Factors Influencing the
Prevalence of Sex Trafficking in India: A Case Study. Journal of Social
Sciences, 6(1), 32-48.
17. Sharma, A., & Sharma, P. (2017). Economic Factors and Sex Trafficking in
India: A Quantitative Analysis. International Journal of Economics and
Business Research, 14(3), 273-289.
18. Khan, R. A., & Singh, A. K. (2020). Role of Education and Poverty in Sex
Trafficking: A Study of Indian Context. International Journal of Sociology and
Social Policy, 40(5/6), 672-689.
19. Jain, P., & Verma, S. (2018). Legislative Framework and the Prevalence of
Sex Trafficking in India. Indian Journal of Criminology and Criminalistics,
39(2), 153-169.

• Websites
1. National Human Rights Commission of India: https://nhrc.nic.in/
2. United Nations Office on Drugs and Crime (UNODC) - India:
https://www.unodc.org/india/en/
3. Ministry of Women and Child Development, Government of India:
https://wcd.nic.in/
4. National Crime Records Bureau, Government of India: http://ncrb.gov.in/
5. National Legal Services Authority, India: https://nalsa.gov.in/
6. International Justice Mission India: https://www.ijmindia.org/
7. Lawyers Collective: http://www.lawyerscollective.org/
8. Prajwala: https://prajwalaindia.com/
9. National Law University, Delhi - Centre for Child and the Law:
http://www.nludelhi.ac.in/
10. Anti-Slavery International: https://www.antislavery.org/

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