By Anuja
In a first for a parliamentary legislation, the Bharatiya Nyay Sanhita (BNS) Bill, 2023, introduced in the Indian Parliament last month, recognises offences related to trafficking in people and ‘human trafficking for prostitution’ as ‘organised crime’. This bill repeals the Indian Penal Code, 1860 or the IPC which is the principal law on criminal offences in the country.
The move is significant because while the nature of crimes related to human trafficking in India have been often been organised, officially recognising it as one could strengthen the investigation process and help in cracking down on such networks. Soon after its introduction in the Lok Sabha last month, the bill was sent to a parliamentary committee which took a closer look and scrutinize its clauses.
The development comes at a time when there is a growing chorus from activists to bring in a bill that specifically addresses issues around human trafficking. In 2018, The Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018 was introduced and passed in Lok Sabha but later lapsed. In 2021, the Ministry of Women and Child Development (WCD) hadinvited suggestions from stakeholders on the draft ‘Trafficking in Persons (Prevention, Care and Rehabilitation) Bill, 2021’.
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What does the BNS say?
Section 109 of the BNS Bill defines organised crimes as a ‘continuing unlawful activity’ done by the efforts of groups of individuals, an organised crime syndicate or others under the threat of violence, intimidation, or coercion to obtain material benefit. Other than crimes like kidnapping, robbery, economic offences and cybercrimes having serious consequences, the section also includes trafficking in people and human trafficking racket for prostitution.
Under the same chapter of the bill that defines organised crime, there are four more specific clauses that deal with the trafficking of a person, exploitation of a trafficked person, habitual dealing in slaves and unlawful compulsory labour.
According to an analysis by the New Delhi-based PRS Legislative Research shared with BOOM, BNS retains the provisions of IPC provisions on what comprises as trafficking and its penalties. Similarly, the Bhartiya Nagarik Suraksha Sanhita, 2023, which will replace the Code of Criminal Procedure, 1973, retains the provision of recognizing trafficking as a cognisable and non-bailable offence, its analysis added.
How does the ‘organised crime’ lens help?
There has been a growing recognition that crimes related to human trafficking in India are organised in nature. In May 2011, the Indian governmentratified the United Nations Convention against Transnational Organized Crime (UNTOC). One of the three protocols under it includes the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially women and children.
“This inclusion in a parliamentary bill is the first time. I am very happy that the present government has realised and recognised the importance of addressing human trafficking from an organised crime perspective. The crime is organised, there is always a string of people starting from spotter, recruiter, someone purchasing, someone selling, harbouring and someone exploiting,” said P M Nair, a senior Indian Police Service (IPS) officer who retired as director general of National Disaster Response Force (NDRF).
Nair, an international expert on human trafficking matters, added that the perspective of an investigator changes when we officially term human trafficking as an organised crime as they will not only deal with the criminal, but one crime will lead to another, many offenders can lead to one victim and many victims can lead to one or several offenders.
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What are the past instances?
According to the analysis by PRS Legislative Research, the home ministry issued an advisory in 2012 on recognising human trafficking as an organised crime. It had suggested certain best practices and mechanisms to investigate offences of trafficking carried out by organised criminal groups.
The analysis adds that currently, few states also penalise organised crime through special local laws such as the Maharashtra Control of Organised Crime Act, 1999 and the Karnataka Control of Organised Crime Act, 2000 While Rajasthan and Haryana have recently passed Bills to regulate organised crime. Trafficking may be covered under these bills. Under the Gujarat Control of Terrorism and Organised Crime Act, 2015, too the definition of organised crime includes human trafficking racket for prostitution or ransom.
Why is it important?
In recent times, India has seen an increase in human trafficking cases. A total of 2,189 cases of human trafficking were registered in 2021 as opposed to 1,714 cases in 2020, showing an increase of 27.7%, the latest report by National Crime Records Bureau (NCRB)showed. A total of 6,533 victims have been reported to be trafficked out of which 2,877 were children, it added.
Nandini Thakkar Singh, head of legal anti-trafficking initiatives at the Mumbai based Vipla Foundation, said that crimes related to human trafficking, particularly trafficking for commercial sexual exploitation, is often dismissed as "prostitution" or "social issue" when it is a serious offence often organised in nature.
“When we speak to victims, we know that the trafficking chain is long. We have been saying that it is not just one perpetrator – victims undergo change through several hands before they end up at their destination,” Singh said adding that the investigation must not only be at the destination but must also go to the root of the crime.
“While we have been saying that trafficking is an organised crime, its insertion in a parliamentary bill will nudge stakeholders to treat it more seriously. It's important that the law enforcers are trained on intelligence gathering, comprehensive investigation and even investigation of cyber-enabled trafficking. Considering the organized nature of trafficking, it is important for all stakeholders to work collectively in a concerted manner,” Singh added.
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What more needs to be done?
Despite growing awareness of human trafficking, conviction rates in India remain abysmal. According to data by the National Crime Records Bureau (NCRB), only 16% of total human trafficking cases in India saw convictions in 2021. Recognising human trafficking as an organised crime could lead to deeper investigations and help strike organised networks.
Kaushik Gupta, a lawyer associated with Tafteesh coalition, said that on the ground more needs to be done than just terming the crime as organised. He said that the bill to address human trafficking that has been pending in the Parliament should be passed soon because ‘unless there is a political will’ to bring in specific anti-trafficking laws, not much will change on the ground.
In India, the AHTUs or anti-human trafficking units under the home ministry work as field level functional units and attends to all three aspects of the crime - prevention, protection and prosecution.
“There must be a dedicated investigating/police force above the rank of inspector with proper training for tackling human trafficking related crimes. Until that time, conviction rates will remain low. Until and unless a nodal agency is created for AHTUs which can create a collaboration and connection with AHTUs of other states, trafficking cannot be prevented or stopped,” Gupta said.
Similarly, Nair added terming human trafficking as an organised crime was the beginning and that investigators must be trained and oriented with a focus on knowledge, skilling, attitude, and resources.
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