PLANTING SEEDS OF HOPE: CULTIVATING A FUTURE WHERE CHILDREN CAN BLOSSOM, FREE FROM TRAFFICKING BY - VEDHIKA GUPTA
PLANTING SEEDS OF HOPE: CULTIVATING
A FUTURE WHERE CHILDREN CAN BLOSSOM, FREE FROM TRAFFICKING
AUTHORED BY - VEDHIKA GUPTA
ABSTRACT
In this
paper the researchers have tried to explain the meaning and scope of the term
Child Trafficking, the term is exclusively dealt along with the related
provision of different legislation in India as well in various International
Frameworks which address the issue of Child Trafficking along with the
penalties imposed. Since the nature of the crime is quite difficult to track
due to insufficient laws, they have tried to a brief insight about the crime.
INTRODUCTION
Human trafficking has been classifies
as the third largest crime done for the sake of earning profits in the world.
As per different reports, the victims are subjected to false and frivolous
promises and put into the work of bondage labour and prostitution for the
purpose of commercial gains. Child Trafficking is one such way to exploit young
girls and boys for the sack of money due to which they are being forced for
bonded labour and sexual exploitation and are transferred from one part of the
country to another or from one territory to another. It can also be proven on the
basis of percentage, that out of every five trafficked children three are girls
below the age of eighteen. The UNODC’s world report found that almost fifty
thousand child trafficking cases were detected out of which only 148 cases were
registered with the authority. Almost about 27% children in the world were
found to be the victim of child trafficking in just one year[1]. And surprisingly, it is the family member of
the child who is involved in trapping them and later on victimising themselves.
If not, a member of the family then some acquaintances who in lieu of their
fake promises to the innocent parents of the child, hoping to give them a
better privileged life which they can’t afford due to poverty send them to
different cities and sometimes to another country for earning money.
Reportedly, it is observed that on most of the dhaba’s, restaurants or chai
tapiri’s and many others such places of small scale business, children are seen
working for long hours without having their meals and proper shelters for them.
The writer has also seen a lot of interviews where such children have been
asked to work for fourteen- fifteen hours for the sake on one time meals. How
inhuman treatment is this, to know what is happening but having no option
rather to be a part of it. The reality is harsh to digest but yes in a lot of
surveys it has been observed that these trafficked children are put into
slavery, without any basic necessities like food, shelter and clothing.
In a survey undertaken by the State
Government it was observed that these trafficking gangs and organisations have
made a chain and are use it to bring children from different part of the world
for the purposes of bondage labour, slavery or otherwise, these organisations
purposely break body parts and force them to beg for money. This is something
which is not acceptable as these young ones are getting injured and hurt, such
inhumane and heartless people shall be caught and punished. In fact these gangs
sometimes attempt to kill these infants when they try escape from the trap. The
most susceptible one are either refugees or migrants who are forged and were
given hopes to provide better education, job opportunity or lifestyle and are
then being exploited. At present almost every country of the world is sufferer
of children trafficking due to which future of the world is in danger.
In the modern times where beurocrate
and white collar job personnel are trying and putting their heart and soul to
protect the rights of human, nothing has changed. Young children are still
being use for commercial purposes and are being objectified. This is a very
common practice which has been evolved in modern times, to exploit children for
some financial gain. All these trackers who are experts and being trained in
exploiting children are following the same pattern to abuse them. They
influence infants by giving them some attractive gifts or food items. Once they
succeed in convincing them, they take them along with them and exploit and
abuse them for different purposes.
Trafficking of infant and especially young girls is something which is known
to us because they have been sold either to some sex workers in the country/
outside the country and nowadays such case are reported frequently. The crime
has increased due to lack of comprehensive legislation and also due to lack of
education and Illiteracy the crime is increasing day by day.
DEFINITION
The term Child Trafficking can be
defined as “an act of transportation, transfer or harbouring and receipt of
people through the means of threat, force, coercion, fraud or use of power and money
for the purpose of exploitation including forced labour, slavery and sexual
abuse”[2].
Trafficking is a heinous offence that violates autonomy and integrity of women
and children rights. Children are trafficked for organ trade, bonded labour,
domestic work, sex tourism, pornography, smuggling and various other illegal
works. Almost every country is affected by trafficking whether developed, under
developed or developing.
INTERNATIONAL LEGAL FRAME WORK:
On the international scale there are
and have been various attempts to combat trafficking and various conventions
address the same as a serious problem in the present time. Some of such conventions
are mentioned below:
1.
In “Palermo Protocol, which is
a supplement protocol to the UN Convention against the transnational organized
crimes (2000)”, in its Article 5 it states it that is mandatory for all the
states to criminalize trafficking, attempt to trafficking and any other such
practices or organization with respect to trafficking scheme.
2.
“The Slavery Convention (1926)”, the convention defines the term
trafficking as a practice similar to slavery which also includes debt bondage
and institution and organizations that discriminate women in context of marriage.
3.
“The Convention on the rights of the
child (1989) and The Optional Protocol on the Sale of Children, Child
pornography and prostitution (2000)”, prohibits child trafficking for any of such purposes
including forced labour and child exploitation. As per Article 39, specifically
put forth the point that state must take all the necessary measures to promote
the rehabilitation of the child victims of any of the form abuse or
exploitation. In its Article 28 it also talks about the Right of every child to
get educated, in continuation of it also mentions about the facilities to be
provided for the treatment of the child in the process of rehabilitation of his
psychology and physical illness under Article 24.
4.
Article 7 of “International
Convention for the Suppression of Human Trafficking” clearly shows its
desire to make laws for preventing Child and Women Trafficking in respect of
immigration[3].
5.
“The Universal
Declaration of Human Right, 1948” which takes and basic human right is also
taking about child trafficking as one of the massive violation of human right.
6.
“The Convention on Civil
and Political Rights, 1966” which include the issue of slavery as well as
trafficking and also takes about its preventive measures.
7.
“The Convention on the
Elimination of all, forms of Discrimination against Women” is also one of the
common conventions which Call upon countries to take legislative measure by
making laws for preventing child trafficking.
8.
“The Declaration on the
Elimination of Violation against women, 1993” which most probably includes, trafficking of
women for sexual exploitation is violation of right against women.
9.
“The Hague Convention” on Protection of
Children and Co-operation in-Respect of Inter-country Adoption, 1993 it mostly
deals on child trafficking and child laundering. This convention is one of the
important conventions because this convention was the first which allowed
inter-country adoption, which was slowly mutualized for child trafficking.
10. “Worst Forms of Child labour Conventions, 1999” which was adopted by
Indian Labour Organization to decriminalize the child labour and slavery below
the age of 18. That means no one can force or allow a child who is below the
age of 18 to work anywhere. It is either a restaurant, industry or someone home.
INDIAN LEGAL FRAMEWORK
Various efforts have been
made by the Parliament of India to put an end to the crime of Human Trafficking.
However, there are certain legislations which are indirectly related to the
Human Trafficking of Children but are more relevant.
·
The Constitution of India[4]
The Indian constitution
mentions about human trafficking under Article 23 which state that “trafficking
in humans and Forced Labour is prohibited and is punishable”. It also “prohibits
child below the age of fourteen to work in any of the hazardous factories or
mines” under Article 24.
·
Indian Penal Code of 1860[5]
The IPC contains various
provisions relating to the prevention and prohibition of human trafficking in
children and imposes a penalty upon the commission of such crime. “The Criminal Law (Amendment) Act, 2013” substituted
Section 370 which legislates the definition of the offence of trafficking. It
provides that
“Whoever, for the purpose of exploitation (a) recruits, (b)
transports, (c) harbours, (d) transfers or (e) receives, a person or persons,
by – first- using threat, or secondly- using force, or any other form of
coercion, or Thirdly, - by abduction, or fourthly- by practicing fraud, or
deception or fifthly - by abuse of power, or sixthly- by inducement, including
the giving or receiving of payments or benefits, in order to achieve the
consent of any person having control over the person recruited, transported,
harboured, received, commits the offence of trafficking.”
“Such a person shall be punished with rigorous imprisonment of not less
than seven years but it may extend to ten years and he shall also be liable for
fine. However, if the person is engaged in the trafficking of more than one
minor in such a case, he shall be punished with a minimum of fourteen years of
imprisonment which may be extended to life imprisonment and fine.”
Section 366 of the IPC
stipulates that if any person induces a woman to go to some place with the “intent
that she can be forced or seduced to illicit intercourse such person shall be punished
with the imprisonment of up to ten years and fine.”
Section 372 of the IPC,
prohibits selling of the minor for the purposes of prostitution and Section 373
stipulates punishment for the same. “Importation of a girl below twenty-one
years of age is an offence under Section 371 which is punishable with life
imprisonment of ten years imprisonment.”
The act was enacted in
2012, it is the first special legislation enacted with intent to protect
children from sexual offences and abuse. Sexual offences are covered under IPC
earlier as well but the act did not provide the distinction between sexual
offence against an adult and a minor child. The act legislates that offenders
shall be punished severely on the basis of the gravity of the offence
committed.
The act specifically
defines child under its definition clause and tends to protect children below
eighteen years of age[7].
·
The Juvenile Justice (care and protection of children)
Act, 2000[8]:
This special legislation
was enacted with the aim to protect the interest of the juveniles and to
provide measure for the rehabilitation of child victims.
·
Immoral Traffic Prevention Act, 1956[9]:
This Act is a special
legislation enacted with an intent to deals with trafficking and provides for
punishment. Sections 3 of the act stipulate “punishment for imprisonment for
not less than one year and more than three years with fine of rupees two
thousand for keeping brothel.”
“The act specifically
provides punishment for detention of a person in the premises where
prostitution is being carried out, i.e. imprisonment for not less than seven
years which may extend to ten year or more.” (The Immoral Traffic Prevention
Act, 1956)
·
The Trafficking Person ( Prevention, Protection and
Rehabilitation) bill, 2018[10]:
The main objective of the
bill was to prevent human trafficking and to rehabilitate the victims of
trafficking, along with the provision of punishment for commission of such crimes.
The bill got passed in Lok Sabha on 26 July 2018, but not in Rajya Sabha and
eventually was lapsed.
LANDMARK JUDGMENTS
1.
Bhandua Mukti Morcha v. UOI 1984 3 SCC 161[11]
This case was filed before the
Supreme Court through public interest litigation under Article 32 of the Indian
Constitution requesting the Hon’ble court to assist the State of Uttar Pradesh
in finding the ways to end the tyke work within the state. The court
constituted an advisory group which reported that a huge number of children are
being misused and are found to be trafficked from the neighbouring states to
work at industries.
The Court while examining the rights
of children it was found that this problem can’t be curb out instantly but a
realistic approach needs to be applied in order to secure and advance the
privileges of the children. The reasoning of the Court was backed with major
rights enumerated in the Indian Constitution such Article 21(the right to life
and liberty), Article 24 (which includes prohibition of work of children below
the age of 14 years in any plant, mine or hazardous place) , Article 39 (e) (
which restricts an individual to work in an unsuited job as per their age)
Article 39 (f) and Article 45. The Court also mentioned about India’s
commitment to UDHR (Universal Declaration of Human Rights) and Convention on
the Rights of the children, to give cost free training to those children who
work in the production lines and other businesses to secure them from being
monetary misused. Further the Court directed the state, the vigilance committee
and the district magistrate to take the assistance of certain non political
organizations working for such purposes in order to implement the laws and
ensuring that the true meaning of the law has been conveyed. The Central and State Government to take
necessary steps for the purpose of providing minimum wage rate.
2.
Laxmi Kant Pandey v. UOI 1984 2 SCC 244[12]
This petition was filed by the petitioner
Laxmi Kant who happened to be an attorney before the Hon’ble Supreme Court
alleging the malpractice on the part of the organizations and private agencies
working for adoption facilities, facilitating Indian children to foreign
parents. There were instances where the children have been neglected by foreign
parents and because of which they have to face a lot of exploitations. The
Hon’ble Court treated the said petition as PIL (Public Interest Litigation).
Addressing the lacunae in the
legislation the Court, in consultation with various organizations and welfare
institutions the Court laid down a comprehensive, normative and procedural
safeguard concerning the root problem of inter country adoption. These
safeguards will regulate the process of giving children for adoption to foreign
parents and protecting them from abuse, ill-treatment or exploitation along
with safeguarding their rights to health and decent life style and family.
While formulating these standard
safeguards the court referred to various laws and policies relating the
children welfare and also looked into the principles laid in the U.N.
Declaration on the Rights of the Child (1959). The safeguard included certain
strict requirements such as:
a) Foreign
parents who wish to adopt must be sponsored by a proper licensed agency in
their own country.
b) That no
application for adoption should be entertained directly through the agencies in
India.
c) That all
the agencies in India working on such inter country adoptions must be licensed
by the government and they have to meet certain stipulated criteria to
undertake such activity.
d) It will be
the responsibility of the agencies and organizations established, to ensure the
safety and well being of the child victims and to make sure that such inter country adoption
is approved and registered by the local courts and authorities taking care of
such adoption in such other country.
3.
Prerna v. state of Maharashtra 2003 (2) Mah.L.J 105[13]:
In this case the Hon’ble High Court
has laid down the guidelines to make sure that the child rescued from the
clutches of human trafficking are being rescued with utmost care and caution,
few of such guidelines are entrusted here:
a) “That if
the child rescued under the Immoral Traffic Act, 1956 is presented before the
Magistrate, his age should be ascertained at the very first instance and if
found below the age of eighteen years then the case shall immediately be
transferred to Juvenile Court or to the Child Welfare Committee.
b) In case the
child has been rescued from a brothel and is found soliciting in public under
the Immoral Trafficking Act, 1956, he should be released once the inquiry by
probation officer is done.
c) In cases
where the parents or guardians of the child are unfit to take care of the
rescued child the procedure under the Juvenile Act shall prevail to
rehabilitate such child.”
In this case a Public Interest
Litigation was brought on the instance of few advocates praying for issuance of
certain guidelines and direction in relation to forced prostitution and women
and children trafficking. The petition also addresses the issue of poor parents
selling their children to earn money in order to combat poverty.
The Apex Court took cognizance of the
matter and said that this matter is of great importance and need immediate
action, a comprehensive analysis was done and it was concluded that this matter
is not only a social issue rather it is a socio economic issue and hence
immediate measures should be taken to prevent it. Considering all the aspects, the Court has
issued certain directions to the State Government and Union Territory such as:
a) Immediate
concerned law authority should take speedy actions under any of the existing
laws and statutes to eradicate this problem.
b) Take
necessary steps to provide appropriate and rehabilitative homes to the victims.
c) Most
importantly to set up an Advisory Committee consisting governmental officials,
criminologist, sociologist, members of the social organization working for
women and children welfare to give their suggestions on the matter at hand and
also measures for acre, protection and rehabilitation of victims.
RECOMMENDATIONS
There are
various collective reasons which promote such inhumane crimes in India and one
of them is lack of awareness amongst the people which the traffickers use as an
opportunity for committing such crime without iota of fear. To put a complete
stop on such attempts, a law should be enacted which exclusively deals with
human trafficking of children. Further, efforts should be intensified to
educate people and spread awareness so as to enable victims, their family
members to come forward, identify these criminals and their organizations and
report them to the competent authority. And this can be done by State by means
of publication at various platforms such as newspaper, websites of ministries,
magazines and other such forums. The State should publish reports on the
conviction and sentences passed against such criminals from time to time which
may be proven of help in two ways, firstly, it will generate a sense of threat
in the minds of such offenders and secondly it will spread awareness. Moreover,
an independent survey should be carried out to identify the total number of
gangs and organizations involved in committing such crimes across the country
and accordingly punish them.
CONCLUSION
Since
trafficking is delicate and sensitive issue it needs to be tackled with utmost
care along with a comprehensive plan. But even after several attempts of the
Indian government and Judiciary for that matter, there is no comprehensive law
which single handedly deals with the problem of human trafficking across the
country. The sole reason for increase in such crime is that there is no
legislation that exclusively deals with human trafficking of children and
dearth of awareness amongst people which eventually gives such traffickers a
chance to commit these crimes more often without any fear of being caught.
There is a need for more strict laws in the country to address the issue.
[1] Roy S, Chaman C. Human rights and trafficking in women and
children in India. J His Arch &
Anthropol Sci. 2017;1(5):162-170. DOI: 10.15406/jhaas.2017.01.00027
[2] The Immoral Traffic Prevention Act, 1956
[3] Council of Europe, 17
January,2010
[4] The Constitution of India, art. 23
& 24.
[5] The Indian Penal Code, 1860
[6] The Protection Of Children From
Sexual Offences Act, 2012
[8] The Juvinile Justice Act, 2000
[9] The Immoral Traffic Prevention
Act, 1956
[10] The Trafficking Person Bill,2018
[12] Laxmi Kant Pandey v. UOI 1984 2
SCC 244
[13] Prerna v. State of Maharashtra
2003 (2) Mah.L.J 105
[14] Vishal Jeet v. Union of India
(1990) 3 SCC 318