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CHILD TRAFFICKING- A SEMINAL DISCOURSE FROM HUMAN RIGHTS: TOWARDS JUS NOVUM
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CHILD TRAFFICKING- A SEMINAL
DISCOURSE FROM HUMAN RIGHTS: TOWARDS JUS
NOVUM
AUTHORED BY - R. DIVYA
Abstract
Youngsters are the future resources
of the country. They should be permitted to partake in their essential
opportunities in the youth days, since adolescence comes just a single time in
the course of their life. Tragically, they are dealt and taken advantage of in
such countless ways as they are exceptionally defenseless. Kid dealing hampers
development of the kid, his wellbeing, physical and mental prosperity.
Youngster bloom and appropriate blossoming is left when they are utilized in
dangerous industry. It is here in the arrangement stage well-rounded schooling
to assimilate the upsides of equivalent citizenship and guzzling the virtues
without double-dealing is required. Because of destitution, ignorance and
poverty they are dependent upon youngster work, prostitution, dealing, sexual
maltreatment, erotic entertainment. Therefore, they are denied of their young
life privileges like instruction, wellbeing, sustenance, protection and
character improvement. What might be said about the freedoms of the youngsters
conceived out of assault, prostitution? Deserted, penniless, road youngsters,
kids working in bazaar and youngsters in compassionate crises and kids with
handicap add to the commitments of weakness. A young lady kid is more powerless
for foeticide, child murder, and deal or kid marriage. Because of sicknesses,
hunger, starvation, destitution, lack of healthy sustenance, unfortunate
disinfection the kid death rate is high in the country. Where does the issue
lie? Who is liable for the pitiable situation? And the privileges of substitute
kids, exile youngsters and kids in the furnished struggle? Is the Constitution
of India a quiet observer? A plenty of regulations viz., the Right of Kids to
Free and Obligatory Instruction Act, 2009, Insurance of Youngsters from Sexual
Maltreatment Act, 2012, the Adolescent Equity Act, 2000 and such ended up being
non-starters and non implementable because of different reasons. The legal
reaction for the delivery and restoration of kids from youngster work and
development of kid right statute through PIL/SAL is critical and go quite far
in uniting adolescent equity. Notwithstanding, the bearings of the legal
executive in such manner are disregarded. The specialist in the paper resolves
the above issues and difficulties looked by the guiltless kids and unsettled
ideas for development of their parcel toward the end.
Introduction
In an enlightened society, the
significance of the youngster government assistance can't be over underscored
in light of the fact that the government assistance of the whole local area,
its development relies upon the prosperity and wellbeing of its kids. Kids need
extraordinary security due to their youthful age, physical make-up, mental
adolescence and inadequacy to care for themselves. Article 15(3) of the Indian
Constitution is enabled to make unique arrangements for the assurance of kids.
There is a developing acknowledgment that youngsters should be raised in an air
of adoration and fondness and under delicate consideration and consideration.
They are incredible commitments of tomorrow, the beginning of mankind and buds
of social turn of events. A general public that is really focusing on youngster
shows the indications of improvement and development. Youngsters are a human
asset, significant yet sadly defenseless. Youngster dealing stayed as a social
danger dehumanizing the kid.
Both worldwide and public instruments
forcefully condemn in an unequivocal terms youngster dealing. To satisfy its
worldwide responsibility, the Commissions for Security of Kid Freedoms Act,
2005 was passed in India. To guarantee security of the privileges of
youngsters, the Public authority has taken on the Public Contract for Kids,
2003. Considering different shows and suggestions of the UN and the ILO
embraced by India, it attempts to adhere to the guidelines set by such show.
Correspondingly under the Indian Corrective Code, dealing of minor is
prohibited. Taking advantage of such dealt people, selling and purchasing of
minors with the end goal of prostitution is denied under Segments 370 A, 372,
373 separately. Further, whoever routinely imports, trades, eliminates,
purchases, sells, deals or arrangements in slaves is cognizable, non-bailable
and non-compoundable offense illegal under segment 371 of IPC.
Youngsters' on the right track to
instruction isn't just a basic liberty however it is instrumental for
acknowledging other common freedoms. Instruction is helpful for character
advancement. It helps kids in getting ready valuable residents of the country.
Tragically, youngster work has turned into a hindrance of street to training.
Before all else, schooling for kids upto 14 years old was a mandate rule of
state strategy. From that point, it was made a major right. Thusly, to
understand the fantasy of free and obligatory training for all, the Right of
Kids to Free and Mandatory Instruction Act, 2009 was passed. Things have not
superior even a while later due to non-execution of the Demonstration in its
letter and soul. The primary thought of precluding youngster dealing is to
empower the kid to get schooling.
Child Trafficking and Its manifestations – Judicial
Response
The judiciary with its innovative and
inspiring judgments has been a bedrock of social justice. The concept of social
justice would remain a myth, if protection could not be afforded to
children. It is submitted that the
judiciary took up cudgels against the exploitation of children and started
giving protection to children in consonance with national and international
commitments. Though child labour and trafficking is prohibited by the
Constitution[1],
children are still employed in hazardous[2]
industry. Tobacco manufacturing has indeed health hazards. Manufacturing
process of matches and fireworks is hazardous giving rise to fatal accidents.
Similarly, prevalence of child labour in carpet weaving industry.[3] In People’s
Union for Democratic Rights v. UOI[4], the
Supreme Court held that the construction work is hazardous employment.
Following the constitutional dictates, the Supreme Court once again in Labourers, Salal Hydro Projects v. State of J.K[5],
observed that construction work is a hazardous employment attracting Article 24
of Indian Constitution. The Supreme Court in Sheela Barse v. UOI[6], has
declared that a child is national asset. A child cannot be treated as an
inanimate object. A child cannot be treated like a property.
Children of the tender age cannot be
subjected to abuse and they should be given opportunities and facilities to
develop in a healthy manner. As there was rise in crime and growing menace of
sexual abuse of child, the Supreme Court in Sakshi
v. UOI[7],
requested the Law Commission to suggest measures. Despite law,[8] protecting
children from sexual abuse, they are subjected to sexual assault, pornography
and all other kind of sexual abuses. Incestuous behaviour with the children is
child abuse[9].
Similarly, Juvenile Justice(Care and Protection) Act, 2000 was enacted for
rationalizing the system of dealing with socially deviant children in keeping
with the spirit of social justice and humanitarian law. The Act was passed
promising to usher in a new era of juvenile justice. However, the desired goals
are not achieved. The Juvenile offenders are taking advantage of the liberal
provisions of the Act and loopholes. The object of the JJ Act is to bring the
neglected juvenile into the main stream of national life. Further, the laudable
purpose of the Act is not to punish and treat them as criminals but to rehabilitate
them. Otherwise, they will be thrown into the vile of prostitution or for trafficking
which would be deleterious to the child’s development.[10]
It is most unfortunate that the
innocent children quite often fall to the prey of traffickers. Forced labour
often has a relationship with trafficking, although they do not have to occur together.
Many of the threats to child well-being fall under the umbrella of child
labour.[11] Children
working on the streets are among the most visible of child labours. The worst
form of child labour is the use of the children in sexually related activities.
In order to gain complete control of the child, traffickers often destroy
physical and mental health of the children through persistent physical and
emotional abuse. Victims experience severe trauma on a daily basis that
devastates the healthy development of self-concept, self-worth, biological
integrity and cognitive functioning. Children who grow up in constant
environments of exploitation frequently exhibit anti-social behaviour,
over-sexualised behaviour, self-harm, aggression, distrust of adults, dissociative
disorders, substance, abuse, complex trauma and attention deficit disorders.[12] Traffickers
in children may take advantage of the parent’s extreme poverty. Parents may
sell children to traffickers in order to pay off or gain income or they may be deceived
concerning the prospects of training and a better life for their children. They
may sell their children into labour, sex trafficking or illegal adoptions.[13]
Right to family life is one of the
prominent human rights of the child as the child grows in its fold of intimacy
and love. Adoption is an act of uprooting a child from the atmosphere of his or
her natural family and transplanting him or her in adoptive family to
facilitate continuation of the lineage of the latter. Traditional purpose of
these artificial arrangements both in Hindu law and Roman law was to vest a
child to a child less family or person. However, the adoption process legal or
illegal, when abused can sometimes result in cases of trafficking of babies and
pregnant women from developing countries to the west. In modern times, adoption
serving as an instrument to help the orphans, destitute and abandoned children
remains a big question mark. Among various forms that are employed by the
traffickers, to abduct children especially girl child, and to induce them into
promiscuous activities, foreign adoptions is one of the important forms that
has been chosen by the people with vested interests in the garb of providing
foster parents to socially neglected children. Millions of Indian children were
lured through illegal means in the name of foreign adoptions, in the absence of
a specific law misusing the provisions of Guardians and Wards Act, 1890. In reality, those children are converted as
beggars, goondas or into the profession of flesh trade.
In Lakshmi Kant Pandey v. UOI[14],
the Court acting on a PIL dealt with the malpractices indulged in by social
organisations and voluntary agencies engaged in the work of offering Indian
children in adoption to foreign parents. Justice Bhagawati laid down principles
and norms which should be followed in determining whether a child should be
allowed to be adopted by foreign parents. The problem of inter-country adoption
associated with various types of abuses has raised serious issues about
adequacy of law and of its social justice components.[15] There is more child-trafficking in the name
of inter-country adoptions. Similarly, the Supreme Court in Vishal Jeet case[16]
in a response to a PIL directed the State governments and Union territories to
take appropriate action to eradicate trafficking in children which often leads
to prostitution.
In Kisher v. Orissa[17],
a PIL highlighted the sale of children in Kalahandi district of Orissa on
account of extreme poverty. The Supreme Court took measures to improve the
conditions and also to prevent the trafficking in children. The sexual
exploitation of blind girl student in a school at Berhampur, Orissa was brought
to the notice of the Supreme Court through a PIL.[18]
The Court also took cognisance of the problems of the children born to
prostitutes and constituted a committee with lawyers and social activists to
look into the matters in Gaurav Jain[19].
Circus is one of the ancient forms of
indigenous entertainment in the world, with humans having a major role to play.
However, the activities that are undertaken in these circuses deprive the
artists, especially children, of their basic fundamental rights. Most of them
are trafficked from some poverty stricken areas of Nepal as well as from
backward districts of India. Bachpan
Bachao Andolan[20]
an International NGO has been able to liberate thousands of children with the
help of the judiciary and the executive as well as through persuasion, social
mobilisation and education. The petition in
Bachpan Bachao Andolan was filed in public interest under Article 32 of the
Constitution in the wake of serious violations and abuse of children who are
forcefully detained in circuses, in many instances, without any access to their
families under extreme inhuman conditions. There are also instances of sexual
abuse on a daily basis, physical abuse as well as emotional abuse. The children
are deprived of basic human needs of food, water and were trafficked into
performing in circuses. The petitioner is engaged in a social movement for the
emancipation of children in exploitative labour, bondage and servitude. The
situation of children in circuses is in no different than animals.
The plight of the children (child
soldiers, refugee children and the displaced children) in complex humanitarian
emergency is unimaginable. Infact, those children are trafficked in a variety
of ways. There are many national and international instruments dealing with the
rights of the child soldiers,[21]
displaced children[22]
and refugee children.[23]
However, these instruments, declarations and U.N. General Assembly resolutions,
Secretary General, ECOSOC and other regional organisations could not arrest the
violations of the rights of the child during humanitarian emergencies.[24]
If a child whether a boy or girl is recruited as a soldier; it has a
devastating effect on his development. He has a little opportunity for
education and skill acquisition. Girls face particular threats including that
of abduction, abuse and rape.[25]
The decision of the Indian Supreme Court in Nandhini
Sundar[26]
would serve as a guideline to both state and non-state actors. Similarly, displaced
children are vulnerable and face threats to life, liberty and trauma. Such
impacts have long term effects on child’s out look on life. The condition of
refugee children is worse. The UNHCR issued guidelines on the protection of
Refugee Children in 1998.
Torture of the girl child[27]
is the very negation of the human dignity and cuts at the root of the culture
of human rights. It is in a way trafficking of the girl child. Torture of girl
child takes place in so many ways i.e torture by the state, during armed
conflict, within family and within the community. Like in custodial torture[28],
in the armed conflict children are especially defenceless against further acts
of sexual violence in return for food, shelter, passage, rations and papers[29]. A girl child faces intimate violence within
the family. Incest[30],
child sexual abuse is forbidden under protection of the Children from Sexual
Abuse Act, 2012. Honour killings[31]
and female genital surgery are the tortious acts committed within community.
Torture is dehumanising, intimidating and frightening for the girl child. It is
to extinguish the individuality and identity of the person[32].
Torture of the girl child is an international phenomenon and has been the
concern of the international community. It is a universal and a global
challenge. The private sanctuary of the family has become a violent prison and
the State has failed in its responsibility to provide relief.
Child marriage[33]
is in a way amounting to child trafficking.
It impacts girl’s reproductive and sexual rights as well as health risks
associated with it like early pregnancy-related deaths. In Forum
for Fact Finding Documentation and Advocacy
v. Union of India[34]
, a public interest litigation was filed against the union of India and
various States seeking strict implementation of the Child Marriage Restraint
Act, 1929. It is described in the
petition that child marriage is merely a camouflage for servitude and sexual
abuse of the girl child violating Arts. 21[35],
23[36]
and 39[37] of the
Constitution. It was argued before the
Court that unnatural offences[38] forbidden under the IPC are also implicit in
the practice of child marriage. The
Prevention of Child Marriage Act, 2005, it is submitted that, is sequel to the FFDA case.
FFDA case thus demonstrates how litigation can be used to move an
issue to the fore, inspire the legislature to take action in this
direction. In 2006, the Supreme Court in
Smt. Sima
v. Ashwani Kumar[39]
, the marriage registration was made compulsory as it helps in preventing of
child marriages. The instant decision
was a very positive step for the protection of reproductive rights of young
adolescents, especially in the light of Indian Government’s declaration to
CEDAW commitments.
It is no longer a secret that
thousands of children go ‘missing’ every year and that Delhi has an
extraordinary high incidence of missing children. National Crime Records Bureau
data registers that a child goes missing every eight minutes. About 40% of
these children remain missing forever. The maximum number of children reported
missing was from areas where people from economically weaker section reside.
They ran away from home as they were pushed to the edge of extreme poverty or
violence at home. A sizable number of those who go missing are trafficked for
prostitution, slavery and beggary. There is a connection between missing
children and organ trade[40]. The
tale of the Nithari murders[41]
is one of the unimaginable horrors. The number of children largely belonged to
migrant worker’s families. The remains of the children were stashed in the
drains running in front of and behind a house in the neighbourhood where they
lived.
Concluding Remarks
From the afore said discussion, it is
concluded that in spite of national and international statutory framework to
end exploitation of children and promotion of child rights, the condition of the child has not improved
particularly the poor, economically backward and other weaker sections of the
society. Despite NGOs, voluntary
organizations and child right activists contributing to the release and
rehabilitation children from bondage, servitude and advocating to the child
rights and for their wellbeing, their situation in the country is not improved.
Due to vulnerability and poverty child
trafficking is taking place in the society in a variety of ways and forms. Child labour is only a tip of the ice
berg. Child trafficking is a gross
violation of human rights. Hence, enacting
a comprehensive legislation separately on child trafficking covering all facets
and forms is the need of the hour.
[4]
(1982) 3 SCC 235
[5]
(1983) 2 SCC 181
[6] AIR
1986 Sc 1873
[7] 1999
(6) SCC 591
[8]
Protection of Children from Sexual Abuse Act, 2012
[9] See M.H.Kakkad v. Naval Dubey, 1992 AIR SCW 1480
[10]
Dr.Awasthi & Kataria, Law relating to
Protection of Human Rights, (2005).
[11] See
Susan C.Mapp, Human Rights and Social
Justice in a Global Perspective (2008).
[12] Rafferty, “ The Impact of Trafficking on Children: Psychological and
Social Policy Perspectives”, Child Development
Perspectives” (2008)
[15] Lakshmi Kant Pandey v. UOI, AIR 1984 SC 469, involved allegation that Indian children of
tender age were under the guise of adoption exposed to
the long horrendous as journey to
distant foreign countries at great risk to their lives
and in the course of time becoming beggars or prostitutes.
[21] Article
4(3) of the Second Additional Protocol to Geneva Convention, 1977 on
‘Protection of Victims of Non- International Armed
Conflict provides that children below fifteen year shall neither be recruited
in the armed forces or groups nor allowed to take part
in hostilities. Article 38 of the Convention on the Rights of
the Child, 1989 and Article 1 of the Optional Protocol
to the Convention on the Rights of the Child, 1989 on
the involvement of Children in Armed Conflict, 2000
also forbid recruitment of children in to the army.
[22] Article
14 and 24 of Geneva Convention relative to the protection of civilian persons
in Time of War, 1949 deal with protection of displaced
children.
[24] For
details, See V.Vijayakumar, “Children in Humanitarian Emergencies and the Guest
for Humanitarian Response: A Study”, 54 JILI,
(2012) 160 – 195.
[25] A number
of studies indicate a large number of recruitment of child soldiers either by
the State or non-state actors.
[26] Nandhini Sundar v. State of Chattisgarh, (2011) 13 SCC 46, wherein the Supreme Court
said that the State of Chattigarh promoting activists group
called “Salwa Judum” to counter
insurgency is involved in widespread violation of
human rights as unconstitutional.
[27] UN Convention against torture and other Cruel Inhuman or degrading
treatment or punishment, 1987; UDHR, 1948, ICCPR,
1966 and the UN Convention on the Rights of the Child (CRC), 1989 stootly
Publication.
[29] Rights of the Child; “ Children in Emergency situation” – Report of the
National Consultation, Nov-21-23,
110(1994)
[32] See
for a critical analysis, See Usha Razdan, “Torture of the Girl Child: State Sponsored Repression, “ 43-66,
54 JILI, (2012)
[33] The
UNICEF Report, 2001 has described the negative consequences that child marriage
has on girls.
[36] Article 23 of the Indian Constitution prohibits human trafficking and
other forms of forced labour.
[37] Art.
39 of the Indian Constitution directs the State to protect children against
exploitation and to provide
them with opportunities and facilities to develop in a
healthy manner and in conditions of freedom and
dignity.
[38] Sec.
377 of the IPC deals with unnatural offences.
[40] Usha Ramanathan,“Organ Trade, Missing Piece in Nithari Puzzle?”,THE
HINDU dated on October, 29, 2014 p.11
Article Information
CHILD TRAFFICKING- A SEMINAL DISCOURSE FROM HUMAN RIGHTS: TOWARDS JUS NOVUM
Authors: R. DIVYA
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/10/04
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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