IPC Section 370- Trafficking of a Person

Section 370 of the Indian Penal Code, 1860 exclusively deals with human trafficking. The Section criminalises recruitment, transportation, harbouring, transferring, receiving and exploitation of people with the help of a variety of coercive methods such as threats, force, and deceit. It includes the term 'exploitation', which refers to physical abuse, sexual abuse, slavery, and the removal of organs forcefully, and points out that the consent by the victim is irrelevant. The provision provides for very strict penalties, which include imprisonment and fines.

Legal Provision: Section 370 - Trafficking Of A Person

Section 370 of the Code provides as follows:

1. Whoever, for the purpose of exploitation, (a) recruits, (b) transports, (c) harbours, (d) transfers, or (e) receives, a person or persons, by–

• using threats, or

• using force, or any other form of coercion, or

• by abduction, or

• by practising fraud, or deception, or

• by abuse of power, or

• by inducement, including the giving or receiving of payments or benefits, in order to achieve the consent of any person having control over the person recruited, transported, harboured, transferred or received, commits the offence of trafficking.

Explanation 1.— The expression "exploitation" shall include any act of physical exploitation or any form of sexual exploitation, slavery or practices similar to slavery, servitude, or the forced removal of organs.

Explanation 2.— The consent of the victim is immaterial in determination of the offence of trafficking.

2. Whoever commits the offence of trafficking shall be punished with rigorous imprisonment for a term which shall not be less than seven years, but which may extend to ten years, and shall also be liable to fine.
3. Where the offence involves the trafficking of more than one person, it shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life, and shall also be liable to fine.
4. Where the offence involves the trafficking of a minor, it shall be punishable with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, and shall also be liable to fine.
5. Where the offence involves the trafficking of more than one minor, it shall be punishable with rigorous imprisonment for a term which shall not be less than fourteen years, but which may extend to imprisonment for life, and shall also be liable to fine.
6. If a person is convicted of the offence of trafficking of minor on more than one occasion, then such person shall be punished with imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine.
7. When a public servant or a police officer is involved in the trafficking of any person then, such public servant or police officer shall be punished with imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine.

Simplified Explanation Of IPC Section 370

Section 370 of the Code provides for the following:

Section 370 (1): Section 370 (1) of the Code provides for a person is said to be committing trafficking for the purpose of exploitation of a person by doing the following act:

1. recruits; or
2. transports; or
3. harbours; or
4. transfers; or
5. receives.

by using the following methods:

1. Threats; or
2. force or any other form of coercion; or
3. abduction; or
4. fraud or deception; or
5. abuse of power; or
6. inducement by giving or receiving money or other benefits for getting the consent of any other person who has a control over the person being trafficked.

Explanation I of sub-section (1) provides the interpretation of the term ‘exploitation’. It provides that exploitation includes following acts:

1. physical exploitation; or
2. sexual exploitation; or
3. slavery; or
4. practices similar to slavery, servitude; or
5. forced removal of organs.

Explanation 2 of sub-section (1) further clarifies that consent of the victim for the determination of an offence of trafficking is immaterial.

Section 370 (2): Sub-section (2) provides for the punishment of trafficking. It provides that one who has committed the offence under this Section is liable to be punished with rigorous imprisonment for a term which shall not be less than 7 years, but which may also extend to 10 years. The person shall be liable to pay fine alongwith the sentence of imprisonment.

Section 370 (3): Sub-section (3) provides that where the offence of trafficking involves the trafficking of more than one person, the offender shall be liable to be punished with rigorous imprisonment for a minimum term of 10 years, which can be extended to life imprisonment. The person shall be liable to pay fine alongwith the sentence of imprisonment.

Section 370 (4): Sub-section (4) provides that whoever is liable for trafficking of a minor shall be punished with rigorous imprisonment for a minimum term of 10 years which may be extended to life imprisonment. The person shall be liable to pay fine alongwith the sentence of imprisonment.

Section 370 (5): Sub-section (5) provides that whoever is liable for trafficking of more than one minor shall be punished with rigorous imprisonment for a minimum term of 14 years which may be extended to life imprisonment. The person shall be liable to pay fine alongwith the sentence of imprisonment.

Section 370 (6): Sub-section (6) provides that whoever is liable for trafficking of a minor for more than one occasion, shall be punished with life imprisonment. Imprisonment of life shall mean imprisonment for the remainder of the natural life of the convicted person. The person shall be liable to pay fine alongwith the sentence of imprisonment.

Section 370 (7): Sub-section (7) provides that if any public servant or police officer is liable for trafficking of any person, shall be punished with life imprisonment. Imprisonment of life shall mean imprisonment for the remainder of the natural life of the convicted person. The person shall be liable to pay fine alongwith the sentence of imprisonment.

Practical Examples Illustrating IPC Section 370

To further understand the nuances of Section 370, we can look into the following examples:

• Forced labour: A recruitment agency allures two people into a trap by promising them huge jobs abroad. Once they reach the place, the workers are put into hard labour against their will. The threats of both violence and wage denial have them at ransom. The act of the agency falls, therefore, within the definition of Section 370 as the same involves exploitation through fraud and by coercion.
• Sex trafficking: A person kidnaps a young woman and puts her into prostitution, forcing her to engage in sexual activities through threats and beatings. This case would come under trafficking by abduction and physical coercion, thus falling within the definition of exploitation under Section 370.
• Domestic servitude: A trafficker recruits some domestic workers from a rural area, promising them a good standard of living and wages. On arrival, they are subjected to working long hours with minimal rest time and physical abuse without any wages. The acts of the recruiter involve trafficking by deception and coercion for purposes of exploitation.
• Child trafficking: A criminal syndicate kidnaps children from slums and makes them work in dangerous workplaces or involves them in some illegal activities. Thus, the practice of trafficking of minor children falls within the ambit of Section 370.
• Organ trade: A hospital collaborates with traffickers in procuring organs from persons who were deceived or coerced into donating. This exploitation for removal of organs falls within the definition of Section 370 as trafficking by fraud and abuse of power.
• Police involvement: A corrupt police officer turns a blind eye to illegal activities or provides fraudulent documents that would aid in the smooth movement of trafficked persons. According to Section 370, the involvement of a public servant in trafficking brings strict penalties and punishment that includes life imprisonment.

Penalties And Punishments Under IPC Section 370

Section 370 of the Code provides for various punishments depending upon the nature and the degree of the offence. The nature of the punishment depends upon various facts, like the number of victims, the victim being a minor or the accused being a public servant. The following are the punishments provided under Section 370 of the Code:

• Punishment for the basic offence of trafficking: Sub-section (2) provides for rigorous imprisonment for a term which shall not be less than 7 years, but which may also extend to 10 years, along with fine.
• Trafficking of more than one person: Sub-section (3) provides for rigorous imprisonment for a minimum term of 10 years, which can be extended to life imprisonment, along with fine.
• Trafficking of one minor: Sub-section (4) provides for rigorous imprisonment for a minimum term of 10 years which may be extended to life imprisonment, along with fine.
• Trafficking of more than one minor: Sub-section (5) provides for rigorous imprisonment for a minimum term of 14 years which may be extended to life imprisonment, along with fine.
• Habitual offender (trafficking of minors): Sub-section (6) provides for life imprisonment. Imprisonment of life shall mean imprisonment for the remainder of the natural life of the convicted person. The person shall be liable to pay fine along with the sentence of imprisonment.
• Involvement of public servant or police officer: Sub-section (7) provides life imprisonment. Imprisonment of life shall mean imprisonment for the remainder of the natural life of the convicted person. The person shall be liable to pay fine along with the sentence of imprisonment.

Case Laws Related To IPC Section 370

Vishal Jeet vs. Union of India & Ors. (1990)

In the case of Vishal Jeet vs. Union of India & Ors. (1990), the Supreme Court dealt with the evil of trafficking, more particularly the problem of forced prostitution, the Devadasi system, and the Jogin tradition. The Court noted that trafficking was a grave problem and of socio-economic in nature. The Court observed that preventive steps rather than mere punitive measures need to be brought to the forefront. The Court passed a number of directions on the question of elimination of child prostitution and rehabilitation of the victims. Some of those directions being:

• Law enforcement measures: Directed all the State Governments and Union Territories to take immediate and necessary steps for proper enforcement of the provisions contained in all the enactments to eradicate child prostitution and to take actions against erring officers for default in such enforcement.
• Advisory committees: Provided for the constitution of separate advisory committees in each State and Union Territory, the members of which were to be drawn from appropriate Government Departments and social organisations. The working of these committees was to advise measures to eradicate child prostitution and implement social welfare schemes to rehabilitate the victims.
• Rehabilitative homes: Suggested the establishment of adequate and suitable homes that are well manned with trained social workers, psychiatrists, and doctors, to look after and rehabilitate the victims.
• National welfare schemes: Direction was issued to the Government to appoint a committee to formulate national level schemes on the welfare of children and to advise necessary amendments in law to curb the evil of sexual exploitation of children.
• Devadasi system and Jogin tradition: Advisory committees were asked to inquire into these matters and submit the report to the government with such recommendations as the circumstances demand.

This decision revolves around a humanist approach that would ensure the protection and rehabilitation of the victims but, at the same time, hold the traffickers responsible.

In re children on street situation (2022), decided by the Supreme Court, is relating to the guidelines issued regarding the testimony of child witnesses/victims of inter-state/inter-district trafficking. The guidelines, focusing on video-conferencing. It is aimed at easing the difficulties and potential dangers of children travelling long distances to provide evidence in court.

Kusum Lata vs. The State (2022)

In the case of Kusum Lata vs. The State (2022), after being charged with child trafficking and kidnapping under various Sections of the IPC as well as the JJ Act, the Petitioner had filed a challenge to those. A medical professional by profession, Lata ran an IVF consultation centre. She argued that she had been falsely implicated and was only instrumental on her part to help in the process of adoption, and not in any form of trafficking. On the basis of evidence, such as financial transactions and witness testimony, the Court found that the grounds were sufficient to frame the charges under Section 370 of IPC. The Court concluded that there was "strong suspicion" of existence of a child trafficking syndicate and stated that the precise role played by Lata is not clear, hence trial is necessary. Particularly, the Court stated that the mere fact of transferring a child for a consideration was evidence of the truth that the natural guardians of the child were "induced" to obtain the consent of their legal guardians, which is exactly the requirement of Section 370 of the IPC.

Rajkumar vs. The State of Karnataka (2022)

In the case of Rajkumar vs. The State of Karnataka (2022), a criminal petition was filed by Rajkumar, who was charged under section 370 of the IPC, before the High Court of Karnataka. The allegation in the complaint was that the petitioner had taken three Indian nationals to Kuala Lumpur for work when they had only tourist visas. The Court held that there was no evidence to show exploitation, a core element of the charge under Section 370. Consequently, it quashed the proceedings and held that continuation of the proceeding would be an abuse of the process of the court and could lead to a miscarriage of justice. The Court observed that neither the complaint nor the evidence indicated that in this case, "exploitation", the very penal element under Section 370, had occurred. Though suspicion was entertained that the petitioner had indulged in trafficking of persons, because he was found with others who claimed to have paid him money, the Court held that such suspicion or such payment of money would not be a ground to prosecute the petitioner under Section 370.

Recent Updates and Amendments to IPC Section 370

The current Section 370 was substituted with the earlier version of Section 370 of the Code by Section 8 of the Criminal Law (Amendment) Act 2013. Till this insertion, there has been no change in the current Section 370. Before this amendment, Section 370 was as follows:

Whoever imports, exports, removes, buys, sells or disposes of any person as a slave, or accepts, receives or detains against his will any person as a slave, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

Summary

The penalties provided under Section 370 are punitive in nature and have a deterrent effect of protecting the vulnerable and punishing those exploiting them. On the other hand, an understanding of the nature of trafficking as coercive and exploitative is clearly grasped by the law in the statement that consent is not a defence. The legislation also shows a concern with accountability among the powerful and the most stringent penalties in such crimes on second-time offenders and persons who used their authority to traffic.

Key Insights & Quick Facts

Some of the quick facts related to Section 370 include: 

• Definition of exploitation: "Exploitation" includes not just physical or sexual exploitation but also slavery, servitude, and removal of organs through the use of force.
• Consent of victim is irrelevant: It is irrelevant that a victim may consent; even if a victim may agree to being trafficked, this does not cause the offence to become null and void.
• The minimum sentence is rigorous imprisonment of 7 years: Rigorous imprisonment of 7 years is the minimum sentence for the offence of trafficking. The maximum punishment provides for life imprisonment which can extend for imprisonment for remainder of the natural life of the convicted person.
• More than one victim multiplies sentence: Trafficking more than one person raises the minimum sentence to 10 years and makes the offender eligible for life imprisonment.
• It treats minors specially: The trafficking of a minor is punishable by a minimum of 10 years, extendable to life imprisonment. When there is more than one minor, it carries a minimum sentence of 14 years and a potential life sentence.
• Repeat offenders receive the most severe punishment: A person convicted of trafficking a minor for a second time will be sentenced to life imprisonment mandatorily – the imprisonment for the rest of their natural life.
• Enhanced punishment to public servants and police officers: Treating the offence as more serious when committed by public servants or police officers, the statute provides for life imprisonment in case of trafficking by any public servant or police officer.
• Fine is always provided: Although Section 370 does not provide the specific amounts, all offences under this section are provided with fine alongside imprisonment.
• Cognizable: As per Schedule 1 of CrPC, the offence under Section 370 is a cognizable offence.
• Non-Bailable: As per Schedule 1 of CrPC, the offence under Section 370 is a non-bailable offence.
• Triable: As per Schedule 1 of CrPC, the offence under Section 370 is triable by the Sessions Court.
• Non-compoundable: As per Section 320 of CrPC, the offence under Section 370 is a non-compoundable offence.