Open Access Research Article
JUDICIAL APPROACH TO CHILD TRAFFICKING IN INDIA
Published Paper
Article Details
Abstract
This research paper delves into the
crucial role played by the Indian judiciary in addressing the pervasive issue
of child trafficking. Recognizing child trafficking as a severe violation of
human rights affecting numerous children across India, the study examines key
judgments and directives issued by both the Supreme Court and various High
Courts. Notable cases such as Vishal Jeet vs. Union of India and Gaurav Jain
vs. Union of India are scrutinized to illustrate how the judiciary acknowledges
the socio-economic factors driving trafficking and emphasizes the need for
comprehensive rehabilitation schemes. Furthermore, the paper evaluates the
effectiveness of existing legal frameworks, such as the Immoral Traffic
(Prevention) Act, 1956, and the Bonded Labour System (Abolition) Act, 1976, in
conjunction with judicial mandates aimed at protecting and rehabilitating
trafficked children. Through an analysis of implementation challenges and gaps
in enforcement, the research underscores the necessity for an integrated
approach involving governmental agencies, non-governmental organizations, and
community participation. By critically examining judicial pronouncements and
their real-world implications, this study highlights the judiciary's pivotal
role not only in delivering justice but also in shaping policy and advocacy
efforts to eradicate child trafficking. The paper concludes with
recommendations aimed at bolstering judicial interventions and fostering
collaborative efforts to ensure the effective protection and rehabilitation of
trafficked children in India. This research aims to contribute significantly to
the ongoing discourse on child rights and the urgent need for systemic reforms
to combat child trafficking comprehensively.
Keywords: children, child labour, bonded
labour, immoral trafficking, juvenile justice
Introduction
Human trafficking has roots in
ancient history and has manifested in various forms across nearly all
civilizations and cultures. This heinous trade exploits the vulnerability of
individuals, particularly women and children, resulting in gross violations of
human rights. Victims are commodified through force, coercion, or deceit for
purposes such as commercial sexual exploitation and forced labour. In India,
one of the world's largest democracies, the Constitution explicitly prohibits
human trafficking and guarantees the right to be free from exploitation as a
fundamental right. Violations are punishable by law. Despite these legal
safeguards, trafficking remains a significant issue in India.
Victims predominantly come from
marginalized segments of society, suffering from caste and tribal
discrimination, as well as socio-economic deprivation. Additionally,
individuals are trafficked into India from neighbouring countries like Nepal
and Bangladesh. Statistics reveal that approximately 80% of trafficked individuals
are women and girls, with up to 50% being minors. Globally, millions of men,
women, and children fall prey to human trafficking for sexual exploitation,
forced labour, and other forms of abuse and exploitation. This ongoing crisis
calls for concerted efforts to address and eradicate trafficking, ensuring the
protection and dignity of all individuals.[3]
Reports of factory and workshop raids
rescuing children surface regularly, highlighting a widespread issue. Victims
come from diverse regions including West Bengal, Bihar, Jharkhand, Assam,
Delhi, Bangalore, and Kerala. Children from Nepal have been rescued from
rat-hole coal mines in Meghalaya; girls from Assam are often forced into
marriage in Haryana due to a gender imbalance; and children from Tamil Nadu are
trafficked to Europe.[4]
In Goa, girls frequently end up in
spas and parlors, coerced into providing services far beyond massage and health
treatments. This ongoing crisis underscores the urgent need for more effective
measures to protect vulnerable children and combat trafficking.
Trafficking:
Meaning
The Immoral Traffic (Prevention) Act
(ITPA) 1956, the only law still in force for trafficking, deals only with
traffi cking of girls and women for prostitution. Amendments to this law have
been long pending.
HAQ's report in 2000, made a salient
observation with regard to this –
“The problem in dealing with this
very complex phenomenon begins with its very definition. There is no single definition
of trafficking. In the absence of a common understanding, it becomes difficult
to design policies, guidelines or even interventions to tackle this issue.”
As a result, the report said: For
purposes of this analysis, we have defined trafficking of children as: “Sale
and purchase of children for gain, within the country (intra-country) and
across borders (inter-country), by deceit, fraud or force, resulting in
exploitation of the person trafficked.”
The Palermo Protocol says: “The
consent of a victim of trafficking in persons to the intended exploitation set
forth in subparagraph (a) of this article shall be irrelevant where any of the
means set forth in subparagraph (a) have been used.”[5]
Laws
Relating to Human Trafficking in India
A trafficked victim is a victim of
multiplicity of crimes, and extreme form of abuse and violation of human
rights. The constitution of India, under Article 23 specifically prohibits
trafficking in human beings. At present the legal regime to trafficking of
women and children for commercial sexual exploitation includes the following.
·
Constitutional provisions
·
Indian Penal Code 1860
·
ITPA-1956
·
J.J. Act-2015.
Constitutional
Provisions
The Constitution of India, the
nation's supreme law, explicitly forbids human trafficking. Article 23 prohibits
"traffic in human beings and begar and other similar forms of forced
labor," while Article 24 bans the employment of children under 14 in
factories, mines, or other hazardous jobs. Key fundamental rights relevant to
trafficking include Article 14, ensuring equality before the law; Article 15,
prohibiting discrimination based on religion, race, caste, sex, or birthplace;
Article 21, protecting life and personal liberty; and Article 22, safeguarding
against arrest and detention except under specific conditions.
The Directive Principles of State
Policy in the Constitution also play a vital role. Article 39 emphasizes the
right to adequate means of livelihood and equal pay for equal work for both men
and women, protection against being forced into unsuitable occupations due to
economic necessity, and the safeguarding of children and youth from
exploitation. Additionally, Article 39A mandates that the legal system should
provide equal opportunities for securing justice, regardless of economic or
other disabilities. These provisions collectively underscore India's commitment
to combating trafficking and ensuring the protection and rights of all its
citizens.
Indian
Penal Code 1860
There are at least 20 provisions that
are linked to trafficking. Under the IPC a trafficked girl child has been
subjected to multitude of violations for example displacing her from her community
would tantamount to kidnapping/ abduction under Section 361, 362, 365, 366, 366A
may apply.
·
Sold
by someone (sec 372)
·
Bought
by someone (Sec 373)
·
Imported
from a foreign country (366B)
·
Outraging
her modesty (354, 354A, 354B, 354C, 354D)
·
Rape,
gangrape, repeatedly raped (Sec 375)
·
Subjected
to perverse Sexual Exploitation (Sec 377)
·
subjected
unlawful compulsory labour (Sec 374)[6]
Other Relevant
Laws
·
Immoral Trafficking Prevention Act 1956
·
The Child Labour (Prohibition and Regulation) Act 1986
·
The Scheduled Castes and Scheduled Tribes (Prevention
of Atrocities) Act 1989
·
Transplantation of Human Organs Act 1994
·
Juvenile Justice (Care and Protection of Children)
Act, 2015
·
The Protection of Children from Sexual Offences Act,
2012
·
The Code of Criminal Procedure, 1973[7]
·
The Bonded Labour Abolition Act, 1976
·
The Right of Children to Free and Compulsory Education
Act, 2009
Judicial
Approach to Child Trafficking in India
In the case of Vishal Jeet v. Union
of India and others[8], a
Public Interest Litigation (PIL) was filed against the forced prostitution of
girls, including devdasis and joginis, and called for their rehabilitation. The
court highlighted the dire plight of the victims, stating, “Prostitution
remains a persistent blight on civilization, eroding moral values. The
notorious and terrifying impacts of prostitution are well-known and undeniable,
threatening society with its slow but relentless advance, leaving behind a
trail of broken hopes."
The court emphasized the urgent need
for decisive action to eradicate this evil, acknowledging that ultimate success
depends on public involvement. The exploitation of impoverished children and young
girls, forced into the 'flesh market' and subjected to the 'flesh trade,'
flagrantly violates all principles of morality, decency, and human dignity.
There is unanimous agreement that this abhorrent crime, committed with
unimaginable vulgarity, must be eradicated through stringent measures. In
response, the Honourable Supreme Court issued specific guidelines aimed at
eliminating this grave issue. These directives underscore the necessity for
comprehensive and drastic steps to combat and ultimately eradicate forced
prostitution in India.
In Lakshmi Kant Pandey v. Union
of India[9], the
Hon’ble Supreme Court emphasised on proper upbringing and welfare of the
children thus: “In a civilized society, the importance of child welfare cannot
be over-emphasized, because the welfare of the entire community, its growth and
development, depend on the health and well-being of its children. Children are
a "supremely important national asset" and the future well-being of
the nation depends on how its children grow and develop. The great poet Milton
put it admirably when he said: "Child shows the man as morning shows the
day" and the Study Team on Social Welfare said much to the same effect
when it observed that "the physical and mental health of the nation is
determined largely by the manner in which it is shaped in the early
stages". The child is a soul with a being, a nature and capacities of its
own, who must be helped to find them, to grow into their maturity, into fulness
of physical and vital energy and the utmost breadth, depth and height of its
emotional, intellectual and spiritual being; otherwise there cannot be a
healthy growth of the nation. Now obviously children need special protection
because of their tender age and physique mental immaturity and incapacity to
look-after themselves. That is why there is a growing realisation in every part
of the globe that children must be brought up in an atmosphere of love and
affection and under the tender care and attention of parents so that they
may be able to attain full emotional, intellectual and spiritual stability and
maturity and acquire self-confidence and self-respect and a balanced view of
life with full appreciation and realisation of the role which they have to play
in the nation building process without which the nation cannot develop and
attain real prosperity because a large segment of the society would then be
left out of the developmental process.”
In the landmark case of Gaurav
Jain v. Union of India[10],
the Supreme Court mandated the formation of a Committee to thoroughly examine
the issues surrounding prostitution, including child prostitutes and the
children of prostitutes. The aim was to develop effective rescue and
rehabilitation schemes. The Court emphasized that children of prostitutes
should not be forced to live in the deplorable conditions of brothels. The
Supreme Court issued directives to protect the human rights of these vulnerable
individuals, highlighting the need for practical and meaningful actions beyond
administrative measures. The Court called for coordinated efforts to curb
immoral trafficking of women, involving interstate and Interpol collaborations,
and tasked the Central Bureau of Investigation (CBI) with investigating and
preventing such crimes.
In Budhadev Karmaskar v. State
of West Bengal[11],
the Supreme Court expressed deep concern over the dire conditions faced by sex
workers, issuing notices to all states. The Court emphasized the need for the
Central and State Governments, through Social Welfare Boards, to develop
comprehensive rehabilitation schemes for physically and sexually abused women,
commonly referred to as prostitutes. Recognizing that these women have the
right to live with dignity under Article 21 of the Constitution, the Court
highlighted that prostitution often stems from extreme poverty rather than
choice. The Court proposed that providing sex workers with opportunities for
technical or vocational training would enable them to earn a livelihood through
skilled work instead of prostitution. The directive called for the creation of
detailed schemes outlining the provision of such training, methods of
rehabilitation, and employment opportunities. For example, if training is
provided in garment sewing, there must also be arrangements for marketing these
garments to ensure the women can support themselves. The Supreme Court's
directive aims to address the root causes of prostitution and offer
sustainable, dignified alternatives for sexually abused women across India.
In the Bandhua Mukti Morcha case[12],
the Supreme Court emphasized the critical need for the rehabilitation of bonded
labourers and directed the government to compensate them under the Bonded
Labour System (Abolition) Act of 1976. Highlighting serious violations of
fundamental and human rights, the Court noted that without proper
rehabilitation, freed bonded labourers could end up in even worse conditions
than during their bondage, leading to further exploitation and a potential
return to serfdom. The Court stressed that freed labourers, when faced with
starvation, might prefer the illusory security of bondage over freedom without
food. Therefore, the State Governments must prioritize the rehabilitation of
bonded labourers, developing effective programs to support their transition to
a life of dignity and security. This obligation is mandated by the Bonded
Labour System (Abolition) Act of 1976, underscoring the importance of sustained
efforts to ensure the rights and well-being of former bonded labourers.
In M.C. Mehta v. State of
Tamil Nadu and Ors.[13]
observing the violation of fundamental rights in cases of child labour, the
Supreme Court has stated thus:
“e is at all a blueprint for tackling
the problem of child labour, it is education. Even if it were to be so, the
child of a poor parent would not receive education, if per force it has to earn
to make the family meet both the ends. therefore, unless the family is assured
of income allude, problem of child labour would hardly get solved; and it is
this vital question which has remained almost unattended. We are, however, of
the view that till an alternative income is assured to the family, the question
of abolition of child labour would really remain a will-o'-the wisp. Now, if
employment of child below that age of 14 is a constitutional indication insofar
as work in any factory or mine or engagement in other hazardous work, and if it
has to be seen that all children are given education till the age of 14 years
in view of this being a fundamental right now, and if the wish embodied in
Article 39(e) that the tender age of children is not abused and citizens are
not forced by economic necessity to enter avocation unsuited to their age, and
if children are to be given opportunities and facilities to develop in a
healthy manner and childhood is to be protected against exploitation as
visualised by Article 39(f), it seems to us that the least we ought to do is
see to the fulfilment of legislative intendment behind enactment of the Child
Labour (Prohibition and Regulation) Act, 1986. Taking guidance therefrom, we
are of the view that the offending employer must be asked to pay compensation
for every child employed in contravention of the provisions of the Act a sum of
Rs.20,000/-; and the Inspectors, whose appointment is visualised by section 17
to secure compliance with the provisions of the Act, should do this job. The
inspectors appointed under section 17 would see that for each child employed in
violation of the provisions of the Act, the concerned employer pays Rs.20,000/-
which sum could be deposited in a fund to be known as Child Labour
Rehabilitation-cum-Welfare Fund. The liability of the employer would not cease
even if he would desire to disengage the child presently employed. It would
perhaps be appropriate to have such a fund district-wise or area-wise. The fund
so generated shall form corpus whose income shall be used only for the
concerned child. The quantum could be the income earned on the corpus deposited
qua the child. To generate greater income, fund can be deposited in high
yielding scheme of any nationalised bank or other public body.
….As the aforesaid income could not
be enough to dissuade the parent/guardian to seek employment of the child, the
State owes a duty to come forward to discharge its obligation in this regard.
After all, the aforementioned constitutional provisions have to be implemented
by the appropriate Government, which expression has been defined in section
2(i) of the Act to mean, in relation to establishment under the control of the
Central Government or a railway administration or a major port of a mine or oil
field, the Central Government, and in all other cases, the State Government.”
In Public Union For Civil
Liberties v. State of Tamil Nadu And Ors.[14],
the plight of the children engaged in bonded labour has been grieved by the
judiciary thus:
“The second complaint of then NHRC
pertains to the plight of bonded children from West Bangal, Jharkhand and Bihar
working under bonded conditions in certain Zari Factories of Kotlamubarakpur
Police Station area of Delhi had been released and rescured through raids “no
steps have been taken by the administration of NCT of Delhi for issue of
release certificates to the victims and for their rehabilitation. Instead of
handing over the release certificates to the victims, these were sent to the Resident
Commissioners of the three originating States namely West Bengal, Jharkhand and
Bihar.” The NHRC has further pointed out that “in the process more than 2 years
lapsed and the children who were supposed to have been rehabilitated by now
could not be rehabilitated due to acts of negligence both of the part of
Government of NCT of Delhi [as] also [the] Government[s] of Bihar, West Bengal
and Jharkhand.” Even though the complaint dates back to 2005 and proceedings
were initiated by the NHRC in 2006, “till date there is no confirmation from
the” States concerned “as to whether all the 129 working children who were
rescued and released from work in the Zari making units of NCT of Delhi have
been fully rehabilitated.
……. Large numbers of children are
working as domestic help in the urban, town and rural areas with no chance to
go to schools even though the education from standard I to VIII is compulsory
under the Right of Children to Free and Compulsory Education Act, 2009. Local
Panchayats and local bodies should identify such children and ensure that they
get proper education. We are not unmindful of the fact that in some households
they treat the domestic help just like their children and give food, clothing
and education but they are exception.”
Conclusion
The judicial approach to child
trafficking in India reflects a complex interplay of legal provisions, societal
norms, and proactive jurisprudence aimed at safeguarding the rights of
vulnerable children. The Supreme Court of India, through landmark judgments
such as Vishal Jeet vs. Union of India and Gaurav Jain vs. Union of India, has
underscored the urgent need for comprehensive measures to address the
multifaceted issues surrounding child trafficking. These rulings have mandated
the formation of committees, the implementation of rehabilitation schemes, and
the enhancement of law enforcement capabilities to curb this grave violation of
human rights. Despite these judicial interventions, the persistence of child
trafficking in India indicates a gap between legal mandates and their on-ground
execution. The court's recognition of socio-economic factors, such as poverty
and lack of education, highlights the need for a holistic approach that
transcends mere legal frameworks. Effective combat against child trafficking
requires a synergistic effort involving government agencies, non-governmental
organizations, and community stakeholders to ensure the protection and
rehabilitation of trafficked children.
Moreover, the judicial emphasis on
rehabilitating rescued children points to the necessity of sustainable support
systems, including vocational training and psychological counselling, to
reintegrate victims into society. This focus on rehabilitation not only
addresses immediate needs but also mitigates the risk of re-trafficking,
thereby providing a path towards a dignified and independent life for the
survivors. While the judicial approach in India has laid a robust foundation
for combating child trafficking, the actualization of these legal provisions
demands unwavering commitment and coordinated action from all sectors of
society. Only through persistent efforts and genuine collaboration can India
hope to eradicate the scourge of child trafficking and uphold the fundamental
rights of its youngest citizens.
[1] Research Scholar for Ph.D., School
of Law and Constitutional Studies, Shobhit Institute of Engineering and Technology,
Meerut, Uttar Pradesh.
[2] Assistant Professor, School of Law
and Constitutional Studies, Shobhit Institute of Engineering and Technology,
Meerut, Uttar Pradesh.
[3] Monika D. Banode, Comparative
Human Trafficking Law “Legal Framework against Human Trafficking”,
International Journal of Law and Legal Jurisprudence Studies :ISSN:2348-8212:
Volume 2 Issue 4.
[4] https://haqcrc.org/wp-content/uploads/2016/06/child-trafficking-in-india-report.pdf
(as visited on June 3, 2024)
[5] See Article 3, paragraph (b) of
the Palermo Protocol.
[6] The Indian Penal Code has been
replaced with the Bhartiya Nyaya Sanhita, 2023. So, corresponding sections of
the Bhartiya Nyaya Sanhita, 2023 may be gone through.
[7] The Code of Criminal Procedure,
1973 has been replaced with the Bhartiya Nagarik Suraksha Sanhita, 2023. It
will come into force on July 1, 2024.
[8] 1990 (3) SCC 318
[9] AIR 1984 SC 469
[10] 1997 (8) SCC 114
[11] [2011] 10 SCR 578
[12] 1984 (3) SCC 161
[13] AIR 1997 SC 699
[14] (2013) 1 SCC 585
Article Information
JUDICIAL APPROACH TO CHILD TRAFFICKING IN INDIA
Authors: MS. SHWETA SINGH, DR. SEEMA MODI
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/06/17
- Issue 7
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International Journal for Legal Research and Analysis
- Abbreviation IJLRA
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