The Orissa High Court has observed that trafficking of girls is an offence more heinous than drug trafficking, but ironically less stringent.
The crime of trafficking girls is dehumanizing as well as utterly shameful to our civilized society, remarked Justice SK Panigrahi while considering a bail plea of a person accused of trafficking girls.
The Court noted that the term 'trafficking in persons" is not defined in Immoral Trafficking (Prevention) Act even though the United Nations Palermo Protocol obliges the State parties to device adequate mechanism to prosecute perpetrators, protect victims and prevent trafficking.
According to the protocol, "Trafficking in persons" shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs".
The court observed that this definition has to be taken into account while framing charges against a person accused of trafficking. It said;
"Even if the accused had a limited role in selling the victims or in the prostitution business, no leniency can be shown to him inasmuch as he played a major role in the racket to push the helpless and innocent girls into prostitution. If any leniency is shown for committing such heinous crime, like forcing a girl into prostitution, it would amount to an affront to the statutes which govern the field and, more importantly, the Constitution of India."
The Court, however, granted bail to the accused taking note of the fact that it had already given bail to co-accused. While disposing of the bail plea, the Court further added:
The instant case, in essence, demonstrates a conflict between collective morality of the society and markedly skewed legislations which mismatches the culpability of the participants in question (i.e. service provider, facilitator) and the recipient of the services. Though it involves clandestine and unlawful trafficking of girls but the law makers have missed the opportunity to prescribe a stringent punishment regime, even though the present offence is far more heinous than drug trafficking. There seems to be an all-pervasive puritan, moral, anti-prostitution posture of the Government, but in practice, there is a yawning gap between the law and its enforcement which results in abysmally low conviction rates.
Case name: PANCHANAN PADHI vs. PANCHANAN PADHICase no.: BLAPL No. 2612 OF 2020Coram: JUSTICE S.K. PANIGRAHI
Click here to Read/Download Judgment