LEGAL MEASURES AGAINST CHILD EXPLOITATION AND TRAFFICKING VIS- À-VIS CAPITAL PUNISHMENT: A SOCIO-LEGAL STUDY BY - DR. ANJU & SHRUTI
LEGAL
MEASURES AGAINST CHILD EXPLOITATION AND TRAFFICKING VIS- À-VIS CAPITAL
PUNISHMENT: A SOCIO-LEGAL STUDY
AUTHORED BY - DR. ANJU & SHRUTI
Abstract
Child exploitation and trafficking are very important issues at present
day scenario and legal measures are very much needed to curb it on world at
large. This paper deals with the issues of child exploitation and trafficking
and legal measures taken at both national and international level to curb it.
The need of capital punishment as highest form of punishment to curb this issue
has also been discussed as children being the vulnerable group and are important
part of population on which growth of the nation depends.
It also incorporates the
international instruments like “United
Nations Convention on the Rights of the Child (CRC)”, “International Labour
Organization (ILO) Convention No. 182 (1999)”, “Optional Protocol to the CRC on
the Sale of Children”, “Child Prostitution, and Child Pornography (2000)” which
deals with issues of children.
The legal framework such as “The Constitution of
India”; “The Bhartiya Nyaya Snhita, 2023”; “The Protection of Children from
Sexual Offences (POCSO) Act, 2012”; “The Juvenile Justice (Care and Protection
of Children) Act, 2015”; “The Immoral Traffic (Prevention)
Act, 1956 (ITPA)”; “The Child Labour (Prohibition and
Regulation) Amendment Act, 2016”; “The Bonded Labour System (Abolition)
Act, 1976”; “The Criminal Law (Amendment) Act,
2013”; “The Transplantation of Human Organs
and Tissues Act, 1994”; “The National Investigation Agency (NIA) Act, 2008” are
taken into account.
The role of judiciary and
NGOs and the need of capital punishment for aggravated sexual offence against
child has been discussed,
Keywords: Child exploitation, trafficking,
capital punishment and legal measures.
Introduction
In recent years, human
trafficking, especially of children, has become a global concern, including in
India. It is recognized as one of the most severe forms of organized crime,
transcending cultural, geographic, and temporal boundaries.[1]
According to the United Nations,[2] “Human
trafficking is the recruitment, transportation, transfer, harbouring, or
receipt of people through force, fraud, or deception, with the intent to
exploit them for profit.” This illegal trade in human beings is driven by
various forms of the exploitations, including reproductive enslavement,
commercial sex exploitation, child forced labour, and other abuses[3] “Child
trafficking” is one of the most urgent global issues today. In India, many
young girls are drawn into commercial sexual exploitation due to factors such
as religious prostitution, sex tourism, and involvement in the production of
pornographic material.[4]
The covert and
cross-border nature of child trafficking, along with the very reluctance of
those people involved to speak openly about it, makes it challenging to
accurately assess the scale of commercial sexual exploitation (CSE) A government
study commissioned by “Department of Women and Child Development” of India estimated
that approximately 2.8 million individuals have been trafficked for CSE in the
country, reflecting a 22% rise from previous estimates. Most of the trafficked
individuals are usually young girls or children, often forced into sex work due
to poverty, with many being under 18. Research also highlights a growing demand
for younger children and for virgins, driven partly because of fears of
HIV/AIDS. Additionally, there has been an emergence of new trafficking routes
and destinations, as well as a rise in the sophistication of trafficking
operations, many of which are controlled by organized crime syndicates or
insurgent groups.[5]
Human trafficking is an
illicit trade in human beings, driven by the intent to exploit individuals for
reproductive enslavement, commercial sexual exploitation, forced labour, and
various other forms of abuse.[6]
Often described as a modern-day form of slavery, this crime persists in today’s
world, trapping countless individuals in a web of exploitation. Human
trafficking isn’t just history repeating itself it’s slavery in our time.[7]
Issues of child exploitation and trafficking
The prevalence of
sex-related exploitation in India is one factor contributing to the problem's
severity. Young women and girls from marginalised and economically
disadvantaged groups, like the Dalits, are involved in one of the most common
types of sex labour. These people are frequently "recruited" by
brokers, forced into prostitution, and sold to pimps or brothel owners, many of
whom are ex-prostitutes. Brokers can be outside agents collaborating with local
accomplices or members of the victims' own communities who pretend to be family
members. In some cases, family members, such as parents or husbands, are
involved in the recruitment process. The strategies employed include making
false promises of employment, approaching families burdened by debt and
persuading them to give up their children, abduction, and arranged marriages,
where young women and underage girls are "married" off to men willing
to pay a dowry to impoverished families.[8]
After marriage, which
makes it more difficult to take legal action, some of these women are either coerced
into prostitution by their husbands or are later divorced or abandoned before
being sold to a broker who subsequently sells them to a brothel. This practice
has been reported in regions such as Bihar, West Bengal, Chhattisgarh, Odisha,
Uttarakhand, and Hyderabad.[9]
Sex tourism (ST), which
includes the mistreatment of young boys and girls by both foreign and Indian
tourists, is another type of sexual exploitation. Children living on the
streets are particularly vulnerable to this type of exploitation.[10]
The cultural component
where the society allows prostitution of their young girls. In certain
communities, when a girl reaches puberty, she is trained and pressured to
accept and enter this profession, earning money for her maternal family, with
male relatives often playing a role in bringing in clients. These girls become
stigmatized and are pushed into social exclusion, unable to lead a normal life.
They endure extreme vulnerability, facing a high risk of affecting with
HIV/AIDS and other sexually transmitted diseases.[11]
Child labour, in which
children are coerced into labour or lack the capacity to refuse it, is becoming
more widely acknowledged as a type of contemporary slavery. They work in many
different professions, many of which are hazardous. Significant health dangers
arise from exposure to machinery, dust, pesticides, and chemicals in
agricultural jobs, as well as fumes, chemicals, acids, and fibres like cotton
and wool in other industries. A large number of children are forced into bonded
labour. They frequently work as domestic helpers or in restaurants and vehicle
repair shops in urban areas. Child trafficking, child labour, and sexual
slavery are still major issues. Although illiteracy and poverty are the main
reasons, negative social perceptions also encourage their exploitation and
misuse. These working kids are deprived of quality healthcare and education,
which results in losing both their childhood and dignity.[12]
Various Kinds of Child Trafficking
1. Forced Child Labour
Despite
the fact that minors in India are legally allowed to perform light employment,
many are trafficked for domestic work and bonded servitude, frequently being
forced to work much beyond the limits. It is common for children to be coerced into bonded labour in
brick and stone quarries, where they are made to repay family debts owed to
moneylenders and employers.
2. Commercial Sexual Exploitation of
Children
Children
are exploited for prostitution, child pornography, and commercial sex. It is
similar to forced labour. This is also a form of contemporary slavery. This is
a method of offering children's sex services in return for money or in-kind
favours known as recompense.
3. Domestic Servitude
Children are often lured with
promises of high pay for working as domestic helpers in middle-class
households, but they frequently endure mistreatment, abuse, and sexual assault.
This form of trafficking is challenging to detect because it occurs behind
closed doors in private residences, without governmental oversight.
4. Illegal Activities
Children
are frequently taken advantage of in illicit activities like begging and organ
trafficking because they are seen as more vulnerable than adults. In order to
enhance their profits, gang bosses have been known to mutilate or blind these
kids with acid in addition to forcing them to beg on the streets. Injured children are frequently used
in this way because they tend to generate more income. Additionally, organ
trafficking is prevalent, with traffickers deceiving or coercing children into
giving up their organs.[13]
Causes of Traf?cking
Human trafficking can be
attributed to a number of things. Push and pull factors can be identified from
these factors. The lack of education, skills, and earning prospects for women
and their families in rural areas, the bad socioeconomic situations that many
families experience, and the poverty that is made worse by frequent natural
disasters like floods that leave some people in destitute are the push factors.
Other contributing causes include dysfunctional home circumstances, domestic
violence against women, the poor social standing of girls, pressure to raise
money for dowries, which drives families to send their daughters to far-off
regions for employment, and ignorance of traffickers' operations. The
attraction of quick money, the promise of higher compensation, and alluring
work prospects in large cities are some of the draw factors.[14]
Legal framework for child exploitation and trafficking
International Laws
International laws and conventions
establish universally agreed-upon standards to combat child trafficking. To
ensure effective implementation and alignment, these standards must be
incorporated into national legislation. The most significant international
conventions addressing child trafficking include:
1. “The Convention on the Rights of the
Child, 1989.”
2. “The Optional Protocol to the
Convention on the Rights of the Child on the Sale of Children, Child
Prostitution and Child Pornography, 2000.”
3. “The Convention on the Elimination of
All forms of Discrimination against Women, (CEDAW) 1979.”
4. “The Protocol to Prevent, Suppress
and Punish Trafficking in Persons, Especially Women and Children.”
5. “Declaration on Social and legal
principles relating to the protection and welfare of children, with special
reference to foster placement and adoption nationally and internationally,
December, 1986.”
6. “SAARC Convention on Regional
Arrangement for the Promotion of Child Welfare, 2002.”
National Laws
“Immoral Traffic
(Prevention) Act, (ITPA) 1956”
The focus is solely on
human trafficking, with the primary goal of preventing and eradicating the
exploitation of women and girls for prostitution as a structured livelihood.
The specified offenses include:
·
Procuring,
enticing, or transporting individuals for prostitution;
·
Detaining
individuals in places where prostitution occurs;
·
Engaging
in prostitution in public spaces or making it visible;
·
Seducing
or soliciting for prostitution;
·
Profiting
from the earnings of prostitution;
·
Seducing
individuals in custody; and
·
Operating
or permitting premises for the use as brothel.
“The Child Labour
(Prohibition and Regulation) Act, 1986”
In addition of outlawing
the employment of minors in some professions, this Act establishes the terms
under which children may labour.
“Information
Technology Act, 2000”
The publication or
transmission of any electronic content that is pornographic, appeals to obscene
interests, or has the potential to corrupt or deprave those who read, watch, or
listen to it is punishable under this Act. It is essential to combating the problem
of pornography. In order to encourage and maintain high standards of moral and
professional behaviour in the field of the internet and related services, India
has also put in place a code of conduct for Internet service providers (ISPs).
“The Juvenile Justice (Care and
Protection of Children) Act, 2000”
Ø Adopted in accordance with the “Convention
on the Rights of the Child (CRC).”
Ø Laws
pertaining to minors in legal trouble and children in need of care and
protection are consolidated and updated.
Ø This Act is particularly significant
for vulnerable children who are at risk of being drawn into trafficking.
Ø “The Protection of children from
sexual offences Act 2012”
Ø The Act
aims to shield children from child pornography, sexual harassment, and sexual
offences.
Ø It penalizes offenses like sexual
offences.
Ø Under Section 6, the most severe
punishment includes “rigorous imprisonment for a period of 20 years, that can
extend to life imprisonment, meaning thereby imprisonment for the offender's
natural life. It also allows for the death penalty. Any fines imposed must be
fair and just, and directed towards covering the victim's medical expenses and
rehabilitation.[15]
“Bhartiya Nyaya
Sanhita, 2023”
Ø Abandonment and concealment of
children- Section 93 of the BNS criminalizes the act of leaving a child under
12 years of age with the intention of abandoning them. The punishment for
this offense is up to seven years in prison, a fine, or both.
Ø Hiring, employing, or engaging a
children to commit offence- Section 95 of the BNS makes it an offense to use a
child to commit an offense, including sexual exploitation or
pornography. The punishment for this offense is three to fourteen years in
prison.
Ø Kidnapping or maiming a child for
begging- Section 139 of the BNS provides punishment for this offense
Ø Sexual exploitation of trafficked
children- Section 144(1) of the BNS provides punishment of five years to life
imprisonment for this offense.
Ø Importing a child from a foreign
country for illicit sexual exploitation- Section 141 of the BNS provides
punishment of ten years to life imprisonment for this offense.
Ø Section 143 of the Bhartiya Nyaya
Sanhita (BNS), 2023, criminalizes human trafficking and exploitation through
coercive means. It imposes stringent penalties on those involved in such
offenses, including:
·
Rigorous imprisonment: A sentence of seven years, which can extend to ten years. In cases
involving multiple victims or minors (under 18), the sentence increases to imprisonment
of ten years, which can extend to life imprisonment.
·
Fines: Convicted traffickers are also liable to pay fine.
·
Harsher penalties for
public servants and police officers: Those in
positions of authority, like public servants or police officers, face more
severe punishments if found guilty of trafficking.
·
Victim's consent is immaterial: The law disregards whether the victim gave consent, focusing
solely on whether the offense occurred.
Ø
Section 144 of the “Bhartiya
Nyaya Sanhita (BNS)”, 2023 deals with the exploitation of trafficked person.
·
Punishment for Sexual
exploitation of a trafficked child is rigorous imprisonment for a term of imprisonment
of five years which can extend to ten years and fine.
·
Punishment for Sexual
exploitation of a trafficked person is Rigorous imprisonment for a term of imprisonment
of three years which can extend to seven years and fine.
Ø
Section 96 criminalizes any act
that causes a child to leave a place or engage in an activity with the intention
or knowledge that the child to be coerced or lured into illicit sexual intercourse
and punishment thereof will be imprisonment for ten years and a fine.
Ø
Section 97 of “the Bhartiya
Nyaya Sanhita (BNS), 2023”, criminalizes the kidnapping or abduction of a child
under tender age of ten years with the intention to commit theft and be
punished with imprisonment for seven years and fine.
Ø
Section 98 of “the Bhartiya
Nyaya Sanhita (BNS),2023” prohibits the sale, hire, or other disposal of a
child for immoral or unlawful purposes and c be punished with imprisonment for
ten years and fine.
Ø
Section 99 of the Bhartiya
Nyaya Sanhita (BNS) criminalises the offence of purchasing or acquiring a child
for unlawful purposes, such as prostitution or illicit intercourse and can be
punished with imprisonment of seven years, which can extend to 14 years and fine.[16]
Ø Constitution of India
Ø Article 24 prohibits the employment
of children who are under the age of 14 years in factories, mines, or other
hazardous occupations. This law is connected with Article 21A, which guarantees
the right to education for children from the ages of 6 to 14.
Ø
Article 45 mandates a provision
of early childhood care as well as education for children up to six years.
Ø
Article 46 encourages promotion
of educational and economic interests of disadvantaged groups, including “Scheduled
Castes” and “Scheduled Tribes.”
Ø
Article 47 calls for improving
the nutrition levels, living standards, and public health of the population.
Ø Right to Equality
(Article 14): It ensures equality before the law as well as
equal protection of laws for all citizens.
Ø Right
Against Discrimination (Article 15): This prohibits discrimination on
the basis of only of religion, caste, race, sex, or place of birth.
Ø Right to
life and personal liberty (Article 21): This guarantees the right to
life and personal liberty and subject to the procedure established by law.
Ø Right to
Protection from Trafficking and Forced Labor (Article 23): This prohibits
trafficking in human being and individual subjected to bonded labour.[17]
Role of judiciary
In “Salal Hydro Project
vs. Jammu and Kashmir”[18],
the Supreme Court interpreted Article 24 of the Indian Constitution, which
forbids the employment of children under 14 in hazardous occupations. The Court
determined that even though construction work was not covered by the Employment
of Children Act, 1938, it still qualified as a hazardous occupation under
Article 24, meaning that children under 14 could not be employed in such jobs.[19]
In “Vishal Jeet v.
Union of India”[20],
the Supreme Court addressed the sexual exploitation of the children, expressing
deep concern about the forced induction of young girls and impoverished
children into prostitution. The Court condemned this practice as a grave
violation of morality and human dignity.[21]
In “Gaurav Jain v. Union of India”[22], The
Court acknowledged the rights of children born to prostitutes, upholding their
entitlement to equality, dignity, care, protection, and rehabilitation. A
committee was established by the court to create a rehabilitation plan for
these kids and sex workers, with regular updates on how it was being carried
out.[23]
In “Sakshi v. Union of
India”[24],
Supreme Court requested the Law Commission for considering the sexual abuse of
children and possible amendments to Sections 375 and 376 of the IPC. This is a
Public Interest Litigation case which ultimately led to the enactment of the “Protection
of Children from Sexual Offences (POCSO) Act, 2012”, which gives protection
against sexual abuse for both boys and girls.[25]
In “M. C. Mehta Vs
State of Tamil Nadu”[26] Supreme
Court prohibited the employment of children in hazardous industries, such as
matchbox and fireworks manufacturing, and directed that step be taken to improve
their welfare and quality of life.[27]
In “Goodricke Group Ltd Vs Centre of West
Bengal”[28] The
Court acknowledged in that it is the duty of both the central and state
governments to provide the funds required to give children free education. The
Supreme Court affirmed in a historic judgment in Unnikrishnan J. P. vs.
State of Andhra Pradesh[29]
that the Indian Constitution's Parts III and IV, which address “fundamental
rights” and the “directive principles of state policy”, are complimentary. The
Court acknowledged that children between the ages of 6 and 14 have a basic
right to free and compulsory education.
In “Bandhua Mukti
Morcha Vs Union of India”[30],
the Court took note of child labour in the carpet industry in Mirzapur, Uttar
Pradesh, and ordered the release of 144 children who were being held in forced
custody by their employers.
In “Sheela Barse Vs
Union of India”[31] a
case brought by social activist Sheela Barse; the Supreme Court addressed the
illegal detention of children under 16 in jails. The Court called for their
release and the establishment of juvenile courts and homes, stressing that
children, as national assets, deserve special treatment. In a related case, “Sheela
Barse v. Secretary, Children Aid Society”, the Court reinforced the need to
protect children’s rights in observation homes.[32]
Role of NGO
in protecting rights of children.
The NGO works with vulnerable section of communities across
India, and with state and central governments, for tackling issues such as
child labour, abuse, corporal punishment, trafficking, and other child rights
violations. Despite India having the world's largest education system, low
enrolment and high dropout rates contribute to low literacy levels. The NGO
focuses on:
·
Promoting
child education in "safe schools" that do not involve discrimination
of any kind based on caste, gender or socioeconomic status.
·
Creating
"Inclusive Learner-Friendly Environments" for children aged 3 to 18
years in slums and villages.
·
Advocating
a financial set up to support “Right to Free and Compulsory Education Act, 2009”,
as part to the Right to Education Forum.
·
Consulting
with families to encourage school enrolment and assisting with admissions.
·
Employing
child-friendly, interactive teaching methods to make learning enjoyable and
meaningful.
·
Providing funding for mobile learning centres,
computers, sports equipment, and libraries.
·
Reintegrating
out of school children into classrooms.
Rehabilitation and Relief Efforts: To provide a supportive environment
for maternal and infant health, the NGO works with the Department of Health and
Family Welfare, Panchayat Raj Institutions, and the “Integrated Child
Development Services (ICDS)” Scheme. In some of the most underprivileged areas
of India, the NGO:
1.
Prepares
Community Healthcare Workers (CHWs) to treat expectant mothers, babies, and
other healthcare patients.
2.
Promotes
improved health policy implementation.
3.
Encourages
the general people to have access to nutrition and health services.
4.
Informs
people about access to food and medication, hospital deliveries, breastfeeding,
and prenatal care.
5.
Provides
nutrition rehabilitation for undernourished children, hosts health camps, and
hosts cookery demonstrations.
6.
Offers
medical support in areas devastated by disasters.
NGOs like Save the Children and others have played a key role
in strengthening anti-child labour laws by providing compelling evidence that
has led to legislative reforms. Their efforts have contributed to significant
advancements, including the enhancement of the Child Labor Prohibition and
Regulation Act through NGO intervention.[34]
Need of Capital Punishment for heinous crime against child.
As there is no standard
of aggravated sexual assault but by going through section 6 of POCSO Act, 2012 it
can be inferred that if the person in authority such as police officer, public
servant, security forces, member of armed forces or appointed to the management of jail, the remand home,
hospital , educational institution and who commits gang penetrative sexual
assault or uses dangerous weapons, fire, heated thing or corrosive substance or
leads to grievous nature of hurt or the
bodily harm or causes injury to sexual parts of the child are liable to be
punished with rigorous imprisonment of a term of minimum twenty years which may
extend to life imprisonment that is for
remainder of one’s natural life
and can be liable to fine or death penalty can be imposed.[35]
The POCSO Act expands the
scope of several offenses already covered under the IPC and introduces
mandatory minimum sentencing. It outlines punishments for crimes such as
penetrative sexual assault, pornography involving child and sexual harassment.
Notably, the law is gender neutral, applying equally both to the child victim
and the accused. In July 2019, the legislature amended the Act to introduce the death
penalty as the highest punishment for aggravated form of penetrative sexual
assault against minors.[36]
This shows the utmost
need of capital punishment as reflected in POCSO Act.
Conclusion
Child exploitation and
trafficking are major issue at present time and it is happening in various
forms like forced child labour, commercial sex exploitation of children,
domestic servitude, illicit activities and many more. Children being the
vulnerable section of society should be taken care of and their exploitation
affects the development of nation as a whole as they constitute a good
proportion of India’s population. Several legal measures both at national and
international level are taken to protect the children from such kind of
exploitation. The judiciary has also played a vital role in securing justice to
children through its judicial pronouncement along with the NGOs in providing
protection and rehabilitation. With the rising rate of crime against children “The
Protection of Children from Sexual Offences Act (POCSO), 2012” was enacted and
it is really a remarkable step taken by legislation through this Act to protect
the rights of children and a highest punishment of death penalty has been
incorporated under section 6 of the abovementioned Act. It is highly
appreciable that POCSO has come to effect and with the highest punishment of
death penalty it may create deterrence in the society with aim to reduce the
crime. The children being the future of a country should be protected to have
full development of country as a whole and brighter future ahead.
[1] INTERPOL, 2005
[2] 2002
[3] United Nations, 2008
[4] Avanish Patel, “Child Trafficking
in India: An Overview” International Journal of Law and Social Sciences
(2023).
[5] Christine Joffres, “Sexual slavery
without borders: trafficking for commercial sexual exploitation in India,” 7 "International
Journal for Equity in Health" 22 (2008).
[6] Supra 3
[7] Supra 1
[8] Supra 5
[9] Ibid
[10] Ibid
[11] “CULTURAL DIMENSIONS OF HUMAN
TRAFFICKING IN INDIA - ProQuest,”available at: https://www.proquest.com/openview/220ed8168bca3e01ee8812e5a678685a/1?pq-origsite=gscholar&cbl=626342
(last visited October 16, 2024).
[12] Rajendra N. Srivastava, “Children
at Work, Child Labor and Modern Slavery in India: An Overview,” 56 Indian
Pediatrics 633–8 (2019).
[13] Navpreet Kaur and Shobha Gulati,
“TRAFFICKING OF CHILDREN FOR CHILD LABOUR IN INDIA” 24–8 (2022).
[14] “Trafficking in women and children
in India: nature, dimensions and strategies for prevention,”available: https://www.tandfonline.com/doi/epdf/10.1080/13642980802533109?needAccess=true
(last visited October 16, 2024).
[15] Pocso Act, 2012
[16] Bhartiya Nyaya Sanhita, 2023
[17] Constitution of India
[18] AIR 1987 SC 177
[20] AIR 1990 SC 1413
[21] Supra 8
[22] AIR 1997 SC 3051
[23] Supra 8
[24] 1999 8 SCC 591
[25] Supra 8
[26] AIR 1991 SC 417
[27] Vishnupriya Dadhich, “Child Rights
and Child Protection: Issues, Challenges and Strategies Role of Judiciary in
Protecting Child Right,” 4 (2022).
[28] 123 CTR 516
[29] AIR 1993 SC 2178
[30] 1997(10) SCC 549
[31] 1986 3 SCC 596
[32] Supra 16
[34] Ibid
[35] POCSO Act, 2012
[36] Kannan Jhunjhunwala, “A case
against the death penalty for child sexual abuse,” 6 Indian Law Review
1–16 (2022).