Human Trafficking in India

(Project Report)

Submitted to:
Dr. Avinash Samal
(Faculty, Political Science)

Submitted By:
Ankita Singh
B.A. LLB (Hons.)
Semester-III, Sec-B, Roll No. 30

Submitted on: 16.08.2016

Hidayatullah National Law University

Uparwara post, Abhanpur, New Raipur (C.G)
 Declaration

I hereby declare that the project work entitled Human trafficking in India
submitted to HNLU, New Raipur, is a record of an original work done by me under the
guidance of Dr. Avinash Samal, Faculty Member, HNLU, Raipur.

Ankita Singh Date - 16.08.2016

Semester III
Roll No: 30
Section-B
 Acknowledgements

First & foremost, I take this opportunity to thank Dr. Avinash Samal, Faculty, Political
Science, HNLU, for allotting me this topic to work on. She has been very kind in providing
inputs for this work, by way of suggestions.

I would also like to thank my parents, dear colleagues and friends in the University, who
have helped me with ideas about this work. I would also like to thank all the authors, writers,
columnists and social thinkers whose ideas and works have been made use of in the completion
of this project. Last, but not the least I thank the University Administration for equipping the
University with such good library and I.T. facilities, without which, no doubt this work would not
have taken this shape in correct time.

Ankita Singh
Semester-III, B.A. LL.B. (Hons.)
Roll no - 30
 Contents

Declaration......................................................................................................i

Acknowledgements...................................................................................................ii

1. Introduction............1
i. Objectives ......3

ii. Scope of study....3

iii. Methodology and database...................4

2. Origin of the Japanese Constitution........................................................

3. Position of Emperor of Japan under Meiji Constitution.......................

4. Position and Powers of Emperor under Shova Constitution................

5. Succession to the Throne.........................................................................

6. Powers of Emperor..................................................................................

Executive Powers

Legislative Powers

Judicial powers

7. Conclusions................................................................................................
 Introduction
Before Japan modernized and opened up to the rest of the world, the emperor was quite irreverent
with the real power divided among regional oligarchs. As such, the emperor was irrelevant in terms
of governance. The role of the emperor only became important after Japan unified, modernized and
engaged the rest of the world in the 1860s. His role is important to solidify the concept of Japan as
a Nation-State and the Japanese people as a Nationality which were new and modern concepts at the
time. The Meiji Constitution of 1889 was Japan's first modern constitution and first attempt to
remodel Japan into a modern constitutional monarchy as well as a modern Nation-State after
centuries of decentralized feudalism. Based on the Prusso-German, the constitution gave
tremendous power to the emperor as a modern head of state and statesman similar to the German
Kaiser.

The Meiji Constitution was the fundamental law of the Empire of Japan, propagated during the
reign of Emperor Meiji (r.1867 1912). It provided for a form of mixed constitutional and absolute
monarchy, based on the Prussian and British models. In theory, the Emperor of Japan was the
supreme ruler, and the cabinet, whos prime minister was elected by a privy council, were his
followers; in practice, the Emperor was head of state but the Prime Minister was the actual head of
government. Under the Meiji Constitution, the prime minister and his cabinet were not necessarily
chosen from the elected members of the Diet. Pursuing the regular amending procedure of the
"Meiji Constitution", it was entirely revised to become the "Post-war Constitution" on 3 November
1946. The Post-war Constitution has been in force since 3 May 1947.
 Page | 2

Objectives

The basic objective of this project is to study;

1. To study about Meiji and Shova constitution

2. To study position of emperor of Japan before 1947

3. To study position and powers of emperor of Japan after 1947

4. To comparatively analyse changes in position and power of Emperor of Japan

before and after 1947

Scope of study

This project human trafficking in India will give a contextual outline of human
trafficking in India. It also focuses on the causes & methods of human trafficking and laws
to combat such problem. This topic will cover the details about right against exploitation
as fundamental right in Indian Constitution, main established law to deal with this problem
including the recent development in this field. It is largely based on article against human
trafficking, forced labour and child labour. Also, at the same time efforts have been made to
study the laws themselves, analyse them from neutral viewpoint and look at their
implementation with the help of few landmark cases on the topic.
 Page | 3
Methodology of study

It has focused on qualitative methods of research. Secondary and published

documented data has been collected through various sources and analyzed accordingly.

To make the study more meaningful and policy oriented available literature and studies
have been consulted and reviewed apart from this field observations and open ended
discussion have also been equally considered and incorporated in the present study.

Various documents have been collected through different websites, and different books
have been analyzed accordingly, so as to reach to a particular conclusion.

Page | 4
 ORIGIN OF THE JAPANESE CONSTITUTION

Before the present constitution was promulgated in November 1946 and then came into force in
May 1947, Japan was governed under the Imperial Constitution of 1889, often known as theMeiji
Constitution after the era (1868 1912) of its birth. Sovereignty then was plainly in the hands of
the Emperor, who claimed to rule by divine right. He held supreme power, while all popular rights
were circumscribed and the duty of people to serve and obey him was absolute, despite periods
when in practice a government responsible to Diet elected on a limited franchise managed most of
the affairs of state. In sharp contrast, the post-war constitution of 1947 proclaimed the sovereignty
of the people, defined set of unequivocal rights, established formal separation of powers and also a
strict separation of state and religion and declared pacifism to be a central policy of the Japanese
state. The constitution was born of a weeks intensive brainstorming by a specially appointed panel
at the direction of General MacArthur1.None of the Japanese were on this committee. The
guidelines under which it operated were clear: the Emperor must be retainedhe had been assigned
an especially important role in United States planning and therefore was to be given immunity from
prosecution as a war criminal; Japan must not be allowed to possess any armed forces and
feudalism had to be abolished2.

Once drafted, the document was handed to the Japanese Cabinet of Prime Minister Shidehara
Kijr and published in March 1946. Paradoxically for a document which was to establish
democracy in Japan, it came accompanied by a special script from the Emperor ordering change,
commanding that the constitution of our empire be revised drastically upon the basis of the general
will of the people and the principle of respect for fundamental human rights. Significantly, the
Meiji Constitution was therefore not rejected, but revised. The process was characterized 3 by
continuity rather than rupture, something that would have been inconceivable in post-war
Germany or Italy. The responsibility for passing the Constitution Bill into legislation was
assumed by Prime Minister Shidehara in the unreformed wartime (militarist) Diet. The bill was
subsequently in some respects revised, and then, after the first post-war, that is, democratic,
elections in April 1946, adopted in the Diet i June. Certain territories remained outside the purview
of the constitution, however, most notably Okinawa, which was only returned to Japanese
administration in 1972.

1
A Gordon (ed), Postwar Japan as History (Berkeley, University of California Press, 1993
2
Koseki, ., 1997, p. 79
3
Dower, ibid., p. 384
 POSITION OF EMPEROR OF JAPAN UNDER MEIJI
CONSTITUION
The Meiji constitution laid emphasis on the institution of the emperor. The very first article read,
The empire of Japan shall be reigned over and governed by a line of emperors unbroken for ages
eternal. Article 1-17 enumerated the powers of emperors. The emperor was made source of all
authority. All laws were to be sanctioned by him. He called the session of the Diet and dissolved the
Lower House. He could issue ordinances. He was the head of the executive, as such he appointed all
the officers. He was the Supreme Commander of the army and navy with power to declare war,
conclude treaties and make peace. The ministers were responsible not to the Diet but to him. The
Emperor use to appoint the Prime Minister and other ministers were appointed by him on the
recommendation of the Prime Minister. The Emperor of Japan had more powers than the king of
Britain. The Emperor had vast powers and combined in himself all sovereignty. Still the Emperor
reign but did not rule. He exercised his powers in consultation with the ministries and the Privy
Council. All the functions were not performed by the Emperor himself but were done in his name.
The Emperor had little hand in the formulation of policy and execution of public affairs. Emperor
could hardly take steps against the ministers. However, it cant be denied that the Emperor had a far
greater moral power an influence. The people worshiped and considered his person as sacred and
inviolable. He represented and symbolised the whole nation. He was in a position to give
admonition, encouragement, or warning as the occasion arose without actually involving himself as
a mediator.

Key provisions with respect to the powers of the Emperor (paraphrased for brevity)
under Meiji Constitution:

Article 1: Japan shall be reigned over and governed by a line of Emperors unbroken for ages eternal.

Article 3: The emperor is sacred and inviolate

Article 4: The emperor is head of the Empire, combining in Himself, the rights of sovereignty.

Article 8: The emperor can issue Imperial Ordinances as necessary to maintain public safety or to

avert public calamities in place of the law.

Article 11: The emperor has supreme command of the Army and Navy.

Article 13: The emperor declares war, makes peace, and concludes treaties.
Thus Sovereignty was vested in the person of the emperor by virtue of his divine ancestry, he was
legally the supreme commander of the Empire as well as the military and held the sole right to wage
or end a war.

Also the Meiji constitution had given rights to the people but they were not real. The Emperor could
impose restriction on their enjoyment and the judiciary had no power to declare his decrees
unconstitutional even if these violated the rights of the people. In fact the rights were given by the
Meiji constitution were not rights as they were not constitutionally safeguarded.

POSITION AND POWERS OF EMPEROR UNDER SHOVA

CONSTITUTION
The monarchy is the oldest institution in Japan. The Emperor has been and still is the living symbol
of the nations history, heritage and achievement. He is the incarnation of history and religion. He is
epitome of nations hopes, aspirations and promises. Before 1945, the military leadership was
supreme in Japan. The Emperor was only figurehead and his real powers were exercised by his
ministers.

The Constitution of 1947 constitutionally recognised the nominal position of the Emperor and gave
to it constitutional recognition. The dualism was abolished and the real power were conferred on the
Diet and the Cabinet was made responsible to it. The constitution-makers has humanised the
personality of Emperor whereas formerly his personality was regarded as divine and inviolate.
Now the sovereignty belongs to the people and not to the Emperor. He is merely constitutional head
of the state and a legalised figurehead.

Succession To The Throne

Article 2 of the Shova Constitution declares that the Imperial throne shall be dynastic and be
succeeded in accordance with the Imperial House Law enacted by the Diet. Under the Meiji
Constitution Diet could not make amendments to the Imperial House Law. It could be amended
only by the Emperor with the advice of the Royal Council and Privy Council. The 1947
Constitution has changed the system and now the Diet is empowered to amend the Imperial House
Law.
Now under the new rule of 1947, the Imperial throne will be succeeded by male offspring in the
main line belonging to the Imperial lineage. Primogenitor is the rule with the succession running
through the main line. No adoption is permitted under this rule. A regency is established in case the
Emperor has not come of the age i.e. 18 years. If there is no member in the Imperial family in the
main line of succession, the Throne is passed to the member of the Imperial family next nearest in
the lineage where precedence being given to the senior member in the senior line. The throne has
not so far gone to the other dynasty. In no other country has the throne been possessed by a dynasty
for so long a time.

POWERS OF EMPEROR

During the Meiji period, the Emperor was the head of the empire and all the powers were
concentrated in his hands. All the legislative and executive powers belonged to him. On the basis of
these powers he reign the government of the country. The Diet at the time used to merely record his
wishes. It was not sovereign as the British Parliament is. The Emperor was the epicentre of the
government. The Meiji constitution had restored divinity on him and he was made to look as a
divine person. Although the Meiji constitution has given him wide powers, yet he did not exercise
them. His position was like the British king who reigned but does not govern.

After the end of World War 2 there were two different views on the question of retaining of
monarchy. Some people were of the view that monarchy has been retained but its power has
become limited, on the other hand others were of the view that office of the Emperor has been
abolished for establishing a peaceful and democratic government in the country because the
Emperor had promoted militarism and Imperialism. Ultimately it was agreed that the office be
retained but the powers of the emperor should be limited. Consequently, under the new constitution
he was deprived of his powers and made a nominal head of the nation.

Another change that was made regarding the position of Emperor was that all his private property
was declared to be property of state and his expenses were appropriated annually by the vote of the
Diet.

Article 1 of the Shova Constitution declares that the Emperor shall be the symbol of the state and
shall derive his powers from the people because sovereignty resides with them. The Emperor will
perform all his acts on the advice and approval of the cabinet.
Articles 1 - 7 clearly define the symbolic and ceremonial role of the emperor and

make it clear that sovereignty resides in the people of Japan

Article 1. The Emperor shall be the symbol of the State and of the unity of the People, deriving his

position from the will of the people with whom resides sovereign power.

Article 3. The advice and approval of the Cabinet shall be required for all acts of the Emperor in

matters of state, and the Cabinet shall be responsible therefor.

Article 4. The Emperor shall perform only such acts in matters of state as are provided for in this

Constitution and he shall not have powers related to government.

The Emperor may delegate the performance of his acts in matters of state as may be provided by

law.

Article 6. The Emperor shall appoint the Prime Minister as designated by the Diet.

The Emperor shall appoint the Chief Judge of the Supreme Court as designated by the Cabinet.

Article 7. The Emperor, with the advice and approval of the Cabinet, shall perform the following

acts in matters of state on behalf of the people

Shova Constitution has enumerated following powers to the Emperor:

A. EXECUTITIVE POWERS OF EMPEROR

The Emperor appoints the Prime Minister as the designated by the Diet
He attests the appointment and dismissal of ministers of the state and other officials as
provided for by law.
He also attests the full power and credentials of ambassadors and ministers
The emperor is the fountain of honour
He attests the instrument of ratification and the other diplomatic documents as provided by
law
He receives foreign ambassadors and ministers accredited to Japan
B. LEGISLATIVE POWERS

All the national laws, constitutional amendments, cabinet orders and treaties are
promulgated by the Emperor.
He convenes the sessions of the Diet
He dissolves the house of representative after the expiry of its term or on the
recommendation of the Prime Minister.
He issues proclamation od general election of members of the Diet

C. JUDICIAL POWERS

The emperor attests general and special amnesty, communication of punishment, reprieve,
and restoration of rights
He appoints the Chief Judge of Supreme Court as designated by the cabinet.
 CONCLUSIONS

Politically, Japanese emperor does not have any power and he never had the true power at least in
last few centuries (though one emperor did try to gain power and failed). While it is true that
historically emperor has been an influential character and that wherever he lived became the capital,
it is also true that military leaders of Japan held all of the power. Emperor never held any power and
he probably never will hold any power.

The actions of the emperor are ceremonial and require the consent of civilian government. As such,
he has no legal powers of government and any residual power would only come from the sheer
force of his personality.

The constitutional position of the emperor has changed considerably in the post-war period. He is
no longer the source of all authority, political and moral. He has been reduced to a symbol and
sovereignty is now deemed to lie in the people. He has certain ceremonials under the constitution
but he has no powers related to government.

The main reason behind fall in powers of Emperor of Japan is actually quite simple. When the US
defeated the Empire of Japan, we didn't remove Emperor Hirohito or his title but rather changed
the Constitution of Japan to basically diminish any power he has. It is explicitly stated in Article
1:The Emperor is the symbol of the State and of the unity of the people.

So in short, the Emperor lost power due to the American occupation of Japan, but we kept the
Emperor in place to add legitimacy to our rule for he was respected by the Japanese people.
 REFERENCES

Books Referred:

Websites Referred: