This article is written by Arpitha Krishnan, an LL.M Student at Cochin University of Science and Technology (CUSAT). The article discusses about various provisions relating to Child Trafficking in Domestic as well as International Laws and the extent of consonance of Indian Law with the International Framework, along with the role of the Judiciary.
“A child is a beam of sunlight from the Infinite and Eternal, with possibilities of virtue and vice, but as yet unstained.”
– Lyman Abbott
INTRODUCTION
Children are the greatest gift for a better future for the Country. Hence the tender age of children should be protected from various forms of exploitation. They need a good atmosphere for their overall development physically, mentally, intellectually, etc. Children are considered to be an extremely valuable asset since ancient times. When a child is born, we welcome the child into this world with much celebration. This indicates one of the instances of the importance of a child. Even the Vedas have stated the importance of children. Bible and Quran also mentions about children. Now children have been the victim of the prevailing social, economic and political systems. Large proportions of children are being deprived of the minimum basic facilities needed for their overall development.
Children, being the future of our country, require special attention and protection against all sorts of exploitation and suppression. It is the responsibility of the State to protect the children from all kinds of exploitation. We have the Constitution of India, various Legislations, National Policies, etc., at the National level and we also have different Declarations, Conventions, etc., at the International level to protect the children in every aspect. They have tried their level best to protect children from various kinds of abuse. Even now children are being exploited and their situation remains the same. The offences against children are increasing in the present scenario too. Forced Child Labor, Child Soldiers, Sex Trafficking and Prostitution, Children Exploited for Commercial Sex, Child Sex Tourism, etc. are increasing rapidly.[1] These offences are various forms of Child Trafficking.
Human trafficking is one of the most heinous crimes in modern civilization.[2] Trafficking of children is a form of human trafficking and is defined by the United Nations as the ” recruitment and or transfer, harbouring or receipt of children for the purposes of exploitation”[3].
This article will examine to what extent the Indian Laws related to child trafficking are in consonance with the International Framework.
NATIONAL LAWS VIS-À-VIS INTERNATIONAL LAWS
Some of the National laws are implemented to give effect to the International dimensions. For example, The Immoral Traffic (Prevention) Act of 1956 (ITPA) was passed to implement the United Nations Convention for the Suppression of Trafficking in Persons and the Exploitation of Others’ Prostitution, which was signed in 1950. Likewise, CRC, UDHR, ICCPR, Worst Forms of Child Labour Convention, International Convention for the Suppression of the Trafficking in Women and Children, The Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution, and Child Pornography, 2000, the Protocol To Prevent, Suppress, and Punish Trafficking in Persons, especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime, 2000, and other International treaties influenced Indian law.
- The Indian Constitution and the Convention on the Worst Forms of Child Labor.
Article 23 and 24 of the Constitution of India, 1950 provides the Right against Exploitation. Art. 23 speaks about Prohibition of trafficking in Human beings and Forced Labour[4], while Art.24 says about Prohibition of employment of children in factories, etc…[5]
Art.23 prohibits Human trafficking, beggar and other similar forms of Forced Labour. Trafficking in human beings also includes trafficking in children. Four types of trafficking in human beings are recognized under this Article which includes men, women, and children being sold and bought like things, and women and children are subjected to Immoral Trafficking, including Prostitution, Devadasi system, and Slavery. Article 24 provides the most relevant provisions which are directly connected with Child Labour.
Worst forms of Child Labour Convention, 1999 advocates for the prohibition and abolition of the worst types of Child Labour, such as Slavery, Forced Labour, and Child Labour, Human Trafficking and bans the use of children in armed conflict, prostitution and pornography, illegal activities such as drug trafficking and dangerous labour. The Convention on the Worst Forms of Child Labor (WFCLC) makes reference in the Preamble to the necessity to adopt new instruments to ban and eliminate the worst types of child work.
The term “Worst Forms of Child Labour” refers to all forms of slavery or practices that are similar to slavery, such as the sale and trafficking of children, debt bondage and serfdom, and forced or compulsory labour, including forced or compulsory recruitment of children for use in armed conflict, for the purposes of this Convention.[6]
Article 23 and 24 of the Constitution of India, 1950 has a similarity with the definition for worst forms of Child Labour which is provided in Article 3(a) of Worst Forms of Child Labour Convention, 1999. Both Articles says about forced labor and trafficking in human beings which includes children.
- Sections 366-A and 366-B Indian Penal Code and The International Convention on the Suppression of Trafficking in Women and Children.
Sections 366-A and 366-B were added through the 1923 Indian Penal Code Amendment Act to give effect to those certain articles of the International Convention for the Suppression of the Traffic in Women and Children signed at Paris in 1910.
Anyone, by any means, induces a girl under the age of eighteen to leave any place or to do anything intentionally that this girl maybe, or knowing that she is likely to be, coerced or seduced into having illicit sex with any other person is liable to imprisonment for up to ten years and to a fine. As per section 366A of IPC, anyone, by any means, induces a girl under the age of eighteen to leave any place or to do anything intentionally that this girl maybe, or knowing that she is likely to be, coerced or seduced into having illicit sex with any other person is liable to imprisonment for up to ten years and to a fine.
As per section 366-B of IPC, anyone in India imports from any country outside of India or the state of Jammu and Kashmir any girl under the age of twenty-one with the intention that she may be, or knowing that she is likely to be, coerced or seduced into unlawful sexual relations with another person, is punishable with imprisonment up to 10 years and is also punishable with fine.
As per article 2 of the Convention, the parties to the Convention should agree to take all measures to discover and prosecute persons who are engaged in the trafficking in children of both sexes.[7]
As per article 3 of the Convention, the parties to the Convention agree to take the necessary measures to punish attempts to commit acts and, within the bounds of the law, the preparation for the commission of the infringements referred to in Article 2 of the Convention.[8]
The import and export of girls for prostitution is the main aim in procuration of a minor girl. Trafficking seems to be the second step in the process of procuration. Firstly, through procuration, a minor girl is induced and then trafficked for various exploiting purposes. The girls are not only taken outside for many illicit activities like prostitution, pornography, etc. They are also imported to India for similar purposes.
As per article 6 of the Convention, the parties to the Convention should agree, in case they’ve no longer already taken legislative or administrative measures concerning licensing and supervision of employment companies and offices, to prescribe such rules as are required to make sure the safety of girls and children in search of employment in some other country.[9]
As per article 7 of the Convention, the parties to the Convention should adopt in reference to immigration and emigration to undertake such administrative and legislative measures as are required to check the trafficking in women and children.[10]
Hence the convention opined to prescribe such rules as are required to make sure the safety of girls and children who are in search of employment in other countries. The objective of section 366B of IPC is to punish the export and import of girls for prostitution. The IPC is in concurrence with the Convention. Because the Convention prescribes to make rules for the safety of girls and children in search of employment in some other country. The import and export of girls mainly happen in the name of job offers in other countries. That’s why 366B of IPC provides punishment for the importation of girls from foreign countries to India for sexual exploitation.
- Sections 370 of Indian Penal Code and United Nations Palermo Protocol.
The Indian Penal Code section 370 deals with human trafficking in general. Sections 370 were enacted in 2013 as part of the Criminal Law (Amendment) Act. The most significant changes brought about by these provisions are the specific criminalization of recruitment, transfer, transport, harbouring a person for the purpose of prostitution, forced labour, and organ removal by threats or inducement, which were previously covered by general provisions dealing with slavery and abduction. This term is similar to the UN Palermo Protocol’s definition of human trafficking.
370A deals specifically with the exploitation of a person who has been trafficked. The commission of an offence pursuant to section 370A occurs when a person knows that the minor has been trafficked or has reason to believe the same, employs a minor in a job that includes sexual exploitation. In that case, the sentence is imprisonment for at least 5 years and maybe extended to 7 years. For an adult, the sentence is not less than three years and can be extended to five years.
- Sections 370A of Indian Penal Code and Convention on the Rights of the Child, 1989.
370A deals specifically with the exploitation of a person who has been trafficked. The commission of an offence pursuant to section 370A occurs when a person knows that the minor has been trafficked or has reason to believe the same, employs a minor in a job that includes sexual exploitation. In that case, the sentence is imprisonment for at least 5 years that can extend to 7 years. For an adult, the sentence is not less than three years and can extend to five years.
Art.3 of CRC states that States Parties adopt to shield the child from all types of Sexual Exploitation and Sexual Abuse. States Parties shall take all appropriate national, bilateral, and multilateral measures to prevent: inducing or coercing a child to engage in any illegal sexual activity; the exploitative use of children in prostitution or other illegal sexual practices; the exploitative use of kids in pornographic performances and materials.[11]
Hence, Sec. 370A of IPC and Art.3 of CRC deals with sexual exploitation of minors.
- Selling Minor for Purpose of Prostitution etc., Optional Protocol on the Sale of Children, Child Prostitution, and Child Pornography to the Convention on the Rights of the Child and Child Rights Convention.
Anyone who sells, rents or otherwise obtains possession; of any person under eighteen years of age with the intent that such person shall at any age be employed or used for the purpose of prostitution or unlawful sexual relations with an individual or for an unlawful and immoral purpose or knowing that such a person is likely to be employed or utilized at any age for this purpose, will be punished with imprisonment for either description for a duration up to ten years and is also punishable with fine.[12]
Party States shall ban the Sale of children, Child Prostitution, and Child Pornography as provided for by the existing Protocol, according to Article 1 of the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution, and Child Pornography.
Article 34 of CRC says about Sexual Exploitation. It states that the State shall defend kids from sexual exploitation and abuse, which includes prostitution and involvement in pornography.[13]
Article 35 of CRC says that Party States shall take all suitable national, bilateral, and multilateral measures to prevent the kidnappings of, the sale of, or trafficking in children for any reason or in any form.[14]
As a result, the provision of the IPC prohibiting the sale of minors for the purpose of prostitution is consistent with Article 1 of the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution, and Child Pornography, as well as Articles 34 and 35 of the CRC.
- The Immoral Traffic (Prevention) Act 1956, The United Nations Convention on the Suppression of Human Trafficking and the Exploitation of Others’ Prostitution, 1950 and Palermo Protocol of the United Nations.
The Immoral Traffic (Prevention) Act of 1956 (ITPA) was passed to implement the United Nations Convention for the Suppression of Trafficking in Persons and the Exploitation of Others’ Prostitution, which was signed in 1950.
Article 1 of the Convention deals with Suppression of Human Trafficking and the Exploitation of Others’ Prostitution.
The Parties to the present Convention has agreed to punish anyone who: procures, entices, or leads another person away for the purpose of prostitution, even with that person’s consent; exploits the prostitution of another person, even with that person’s consent, to gratify the passions of another.
This provision is similar to Sec.5(a) of ITPA.
Sec.5(a) of ITPA says about Procuring, inducing, or taking a person for the sake of prostitution:
Any person who procure or attempt to procure a person, with or without their consent, for the purpose of prostitution; is liable for punishment.[15]
Hence, Article 1 of the Convention for the Suppression of Trafficking in Persons and Exploitation of the Prostitution of Others and Sec.5(a) of ITPA are similar.
Definition of trafficking which is mentioned in Sec. 5A of ITPA is similar to the definition provided for trafficking in Art.3 (a) of the United Nations Palermo Protocol.
- The Children’s Protection from Sexual Offenses Act, 2012 and Child Rights Convention, 1989
In 2012, the CRC, in conjunction with its non-obligatory protocol on the Sale of children, Child Prostitution, and Child Pornography, 2002, was implemented by the Indian Parliament through the POCSO Act, 2012. The Preamble to the POCSO Act also additionally display adherence to the ideas of CRC and its elective protocol. It says, the Government of India has acceded to the Convention at the Rights of the Child, on 11 December 1992 adopted by the General Assembly of the United Nations, which has prescribed the requirements to be observed through all member states in securing the best interest of the child.[16]
One of the functions of this Act is to fix a set of standard rules, legal principles, and policies for the best interest of the child as has been advised to all States through the UN CRC, to which India had acceded on 11th December 1992.
Articles 34 to 36 are specific to the Sexual Exploitation of children; Section 34 emphasizes the exploitation of children for the purpose of unlawful sexual gratification. Part I of the Convention as a whole should be considered to include children’s rights in the background of any sort of exploitation of children including sexual exploitation.[17]The Preamble to the POCSO Act indicates the same.
- The Act on Information Technology Act, 2000 and the Cyber Crime Convention of the European Union, 2001
The issue of Child Pornography was finally addressed, motivating many countries including India to develop laws regulating Child Pornography with the European Union Convention on Cyber Crimes, 2001.[18] The guidelines of the EU Convention had been the major motivation for many countries including India to create Child Pornography laws, in contrast to other countries, India is a signatory to the United Nations CRC and the Optional Protocols on the Sale of Children, Child Prostitution, and Child Pornography dated May 25, 2000.
India also ratified the Optional Protocol to the Convention on 16 August 2005. It may be necessary to note that the first version of IT Act, 2000 (Act no. 21 of 2000) which received the presidential assent on 9 June 2000 had included S.67, criminalizing obscene publications on the Internet under Chapter XI which deals with such offences.
CONCLUSION
The provisions included in the Child Trafficking Laws in the National regimes are in consonance with those in International regimes.
The CRC and its optional protocols have provided the basis for the creation of child-friendly laws to prohibit three main types of child sexual offences: the sale of children for sexual gratification, child prostitution, and child pornography. All three types of offences include sexual exploitation and sexual slavery of children, regardless of gender. The Convention and the Protocol stressed the need for a suitable criminal justice mechanism to deal with such issues which can save the victims from becoming physically and mentally disturbed for their whole life.
The Convention and the Protocol are provided to prevent sexual abuse of victims which, if they are not cared for at a young age, can create more offenders and victims in the future. Although India already had several laws dealing with trafficking in children or laws against child pornography, there was a need for a law from a POCSO perspective, created on the basis of this Convention and the corresponding Protocols.
ROLE OF JUDICIARY IN CURBING CHILD TRAFFICKING
In Sakshi v. Union of India,[19] The Supreme Court issued instructions on how child sexual assault cases should be tried. The Court held that a screen or other arrangement can be made so that the victim or witnesses do not see the accused’s body or face; questions put in cross-examination on behalf of the accused that are directly related to the incident should be given in writing to the Presiding Officer, who can explain it to the victim in a non-embarrassing manner. While giving testimony, the victim of child sexual abuse should be given adequate breaks as needed.
In another case MC. Mehta v. Union of India,[20] The Supreme Court’s three-judge bench passed a momentous decision. Children’s fundamental rights against exploitation were being extensively infringed in the match and firework businesses in Sivakasi, according to the court. The court went on to say that the process of making matches and pyrotechnics was dangerous, resulting in deadly incidents. This verdict has undoubtedly sparked a great deal of interest in the abolition of Child Labour among the organizations involved and the state government. The court also stated that “the inspectors designated under the Child Labour (Prohibition and Regulation) Act, 1986 have a significant responsibility to investigate into the exploitation of children.” However, many of these inspectors are to blame for the Act’s sluggish implementation. It is necessary to provide orientation and training to these inspectors and other staff members in order to make them aware of the need of ending Child Labour.”
In People’s Union for Democratic Rights,[21] The Supreme Court established a rule to assess what constituted compelled labour in the Asiad case. The Court ruled that when a person performs labour or provides a service to another for less than the minimum wage, his labour or service plainly falls within the scope and ambit of compelled labour.
Although the construction industry is not listed in the schedule under the Child Labour (Prohibition and Regulation) Act, 1986, and is not covered by section 3(3) of the Employment of Children Act, 1938, the Court held that a child under the age of fourteen can be protected from working in the industry under Article 24 of the Constitution. This is a constitutional restriction that must function Proprio-vigore if not followed up by proper legislation, as building activity is clearly and unmistakably a dangerous occupation.
In Neerja Chaudhary v. State of Madhya Pradesh,[22] The Supreme Court, in response to a public interest lawsuit filed by a journalist, ordered the State Government to organize a vigilance committee to work on the rehabilitation of liberated child bonded labourers and to carry out these orders within one month. The Court also ordered the state government to identify and free bonded labourers as soon as possible.
In Bandhua Mukti Morcha[23] The Court ordered the Central Government to call a meeting of concerned Ministers from various states to develop measures for the gradual abolition of child labour. The court ruled that bonding people without essential necessities like shelter, drinking water, or two square meals a day violated their fundamental rights, as everyone has the right to live in this nation free of exploitation. As a result, the necessity for compulsory education for children, vocational training, health exams, and nutritional food was highlighted.
In Bachpan Bachao Andolan v. Union of India,[24] The Supreme Court established a unique plan for the rehabilitation of children rescued from circuses in response to a writ petition alleging the exploitation and trafficking of children in circuses. The following acts must be performed by the State, according to the Court:
“It is critical that the Central Government make appropriate notifications barring the employment of children in circuses within two months of today in order to implement the fundamental right of children under Article 2EIA. The respondents have been ordered to execute simultaneous raids at all circuses in order to free the youngsters and prevent violations of their fundamental rights. The rescued children will be placed in Care and Protective Homes until they become 18 years old. The respondents are also instructed to speak with the children’s parents, and if they are willing to return their children to their homes after proper verification, they may be directed to do so. The respondents are to devise a proper plan for the rehabilitation of circus children who have been rescued. We direct the Secretary of the Ministry of Human Resources Development to provide a thorough affidavit of conformity with the Department of Women and Child Development within ten weeks.”
In Bachpan Bachao Andolan v. State of Jharkhand,[25] The Petitioner informed the court that there is no working shelter home and only two children’s homes, one for boys in Jamshedpur and the other for girls in Deoghar. Several children who are victims of human trafficking are brought to the state of Jharkhand, where it is a major challenge for the state to provide them with shelter. Despite receiving significant funding from the Central Government, the shelters are not being built adequately or is in insufficient numbers. In this case, the High Court issued the following orders:
a) The State Commission to be constituted for the Protection of Children’s Rights’ Constitution.
b) Instructions were given for the formation of Child Welfare Committees, Children’s Homes, and Shelter Homes, among other things.
c) The State Action Plan for the Elimination of Child Labor in Jharkhand to be developed.
In addition, the Hon’ble Supreme Court of India issued a historic verdict in the case of missing children in a suit filed by Bachpan Bachan Andolan. In view of the data provided before it by Bachpan Bachao Andolan, the Court has taken the problem of missing children extremely seriously. The Hon’ble Court took note of the fact that 90,654 children went missing in 2011, with 34,406 still unaccounted for. However, just 15,284 FIRs were filed, prompting the launch of investigations. While issuing the following directives, the Hon’ble Supreme Court highlighted the efforts of the petitioner, Mr. H.S. Phoolka (Senior Advocate), and other advocates:
a) Mandatory police registration of missing children cases based on the assumption that they are victims of kidnapping and trafficking.
b) Compulsory police registration of all children who have yet to be located (in 2011, 34,406 children are still untraced).
c) In all states, police will develop standard operating protocols for dealing with incidents of missing children.
d) Every police station should appoint and train Special Child Welfare officers to deal with incidents of missing children.
e) Police will keep records of found children, including images, and the Ministry of Home Affairs will make it easier to keep track of missing children’s data.
REFERENCES
- Major Forms of Trafficking in Persons, Office to Monitor and Combat Trafficking in Persons, 2008, available at https://2009 2017.state.gov/j/tip/rls/tiprpt/2008/105377.htm (accessed on 24/10/2021)
- Sarfaraz Ahmed Khan, “Human Trafficking, Justice Verma Committee Report And Legal Reform: An Unaccomplished Agenda”, Journal of the Indian Law Institute, [2014], Vol. 56, No. 4, available at https://www.jstor.org/stable/43953729 (accessed on 22/10/2021)
- Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children. United Nations. 2000. Retrieved February 9, 2012
- Constitution of India, 1950.
- Worst Forms of Child Labour Convention, 1999.
- International Convention for the Suppression of the Traffic in Women and Children
- Convention on the Rights of the child, 1989
- Indian Penal Code, 1860.
- The Immoral Traffic (Prevention) Act 1956
- DebaratiHalder, Child Sexual Abuse and Protection Laws in India, New Delhi, India:SAGE Publications,2018, p.15
CITATIONS
[1] Major Forms of Trafficking in Persons, Office to Monitor and Combat Trafficking in Persons, 2008, available at https://2009 2017.state.gov/j/tip/rls/tiprpt/2008/105377.htm (accessed on 24/10/2021)
[2] Sarfaraz Ahmed Khan, “Human Trafficking, Justice Verma Committee Report And Legal Reform: An Unaccomplished Agenda”, Journal of the Indian Law Institute, [2014], Vol. 56, No. 4, available at https://www.jstor.org/stable/43953729 (accessed on 22/10/2021)
[3] Art.3(c), Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children. United Nations. 2000. Retrieved February 9, 2012
[4] Art.23, Constitution of India, 1950.
[5]Id.,Art.24
[6] Art. 3(a), Worst Forms of Child Labour Convention, 1999.
[7] Art. 2, International Convention for the Suppression of the Traffic in Women and Children
[8]Id., Art. 3.
[9]Id., Art. 6.
[10]Id., Art. 7.
[11] Art.34, Convention on the Rights of the child, 1989
[12] Sec. 372, Indian Penal Code, 1860.
[13] Art.34, Convention on the Rights of the child, 1989
[14]Id.,Art.35
[15] Sec.5(a), The Immoral Traffic (Prevention) Act 1956
[16]DebaratiHalder, Child Sexual Abuse and Protection Laws in India, New Delhi, India:SAGE Publications,2018, p.15
[17] Id., p.24
[18]Id., p.81
[19] AIR 2004 SC 3566: 2004 AIR SCW 3449: (2004) 5 SCC 518.
[20] AIR 1991 SC 417: 1991 AIR SCW 60: (1991) 1 SCC 283.
[21] (1982) 2 SCC 494: 1982 Lab IC 1646: AIR 1982 SC 1473.
[22] (1984) 3 SCC 243: 1984 Lab IC 851: AIR 1984 SC 1099.
[23] AIR 1997 SC 2218: 1997 AIR SCW 2083: (1997) 2 SCR 379.
[24] (2011) 5 SCC 1: AIR 2011 Sc 3361: 2011 AIR SCW 5169.
[25] Writ Petition (PIL) No. 139 of 2011, decided on 17th December, 2013.
