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When the judiciary, under the
guise of interpreting the law, goes a step
beyond, and ends up giving the country new binding law, which is
usually
different from the existing one then it constitutes Judicial
Activism.
In this modern era Judicial Activism emerged as tool for curbing
Child
trafficking from grass root level. Child trafficking refers to the
recruitment, transportation, transfer, harboring or receipt of
persons,
by means of the threat or use of force or other forms of coercion,
of
abduction, of fraud, of deception, of the abuse of power or of a
position of vulnerability or of the giving or receiving of
payments or
benefits to achieve the consent of a person having control over
another
person, for the purpose of exploitation. An overview of major laws
came
to conclusion that child is a person who is above 18 years of age.
Child
trafficking shall include, at a minimum, the exploitation of the
prostitution of others or other forms of sexual exploitation,
forced
labor or services, slavery or practices similar to slavery,
servitude or
the removal of organs. What is very disturbing is that the
available
evidence indicates that one third of people exploited in flesh
trade are
children/minor.
Anti Child Trafficking Laws
The 1949 Convention against trafficking gave rise to the first
Indian
law against trafficking- The Suppression of Immoral Traffic Women
&
Girls Act 1956. Other legislation relations to child trafficking
are:
# Children (Pledging of Labor) Act, 1933
# Immoral Traffic (Prevention) Act, 1956
# Child Labor (Prohibition And Regulation) Act, 1986
# Section 366,360B,372,373,370 of Indian Penal Code
All these above laws should be effectively implemented & used by
judiciary.
The judiciary has interpreted the aforesaid laws, in following
landmark
cases. It was categorically stated in Public at Large Vs. The
State of
Maharashtra and Ors by H'onble High Court of Bombay that the
traffic
in children is not confined only to what larger scale than
innocent
Members of this House may be aware - in what is known as White
Slave
traffic, namely, the buying and selling of young women including
minor
girl for export or import, from one set of countries to another;
and
their permanent enslavement or servitude to an owner or proprietor
of
the establishments of commercialized. In addition to this it was
held by
H'onble Supreme Court that a proper cell be created by Women and
Child
Welfare Department of the State of Maharashtra in order to
rehabilitated
victim of trafficking in society. On the same thought of line, it
was
observed in the Prerana Vs. State of Maharashtra & Ors that
children
who are being likely to be grossly abused, tortured or sold for
the
purpose of sexual abuse or illegal acts they will have to be
produced
before the Child Welfare Committee. Furthermore, the H'onble High
Court
of Bombay gave directions to state for Rehabilitation these
victims of
trafficking. In Vishal Jeet vs. Union of India H'onble Supreme
Court issued directions to the state Government for setting up
rehabilitate
homes for children found begging in streets and also the minor
girls pushed into 'flesh trade' to protective homes.
In the famous
Freddy Peats case where Freddy Peats was running a
racket
in child sex abuse for years, maintained destitute children in his
orphanage in order to offer them to the European Sex Tourists who
regularly came to Goa to have sex with these children & get huge
amount
in return of that .The case was handled by Sheela Barse the child
right
activist whose intervention in this case led to child friendly
procedures by the trial court
The following observations were made by H'onble Supreme Court in
relation to child trafficking:
1) Trial was held in- camera in the chamber of the session's
judge.
2) All persons in the trial were in informal dress.
3) No police officer was present inside the chamber or at the
place
where the trial was conducted
It was pointed out by H'onble Supreme Court in
Bandhua Mukti
Morcha v.
Union of India and others exploitation of the child must be
progressively banned, other simultaneous alternatives to the child
should be evolved including providing education, health care,
nutrient
food, shelter and other means of livelihood with self-respect.
In Gaurav Jain Vs. Union of India and others direction were given
to
Government by the by H'onble Supreme Court to rehabilitate
children
and child prostitutes after conducting in depth study of matter
.Furthermore juvenile homes should be used for rehabilitating
child
prostitutes.
Recommendations
Judiciary is working hard to curb child trafficking from its grass
root
level. But some issues which left open for judiciary must be
carried out
more tactfully. Judiciary shall carry out comprehensive and
independent
national surveys to identify the total number of child trafficking
in
the country. Prosecutions must be initiated against all those who
indulge in child trafficking use and against those who use
intimidation
and violence to retain children as trafficker. The number of
successful
convictions and sentences passed should be published, by state, on
a
regular basis.
Conclusion
The problem of child trafficking cannot be handled in isolation.
But
this problem can only be stopped if the kingpins too are arrested,
and
in order to do so the police and the public have to become much
more
vigilant. It is a slur on administration & judiciary; rather it is
the
failure to take note of and to make an effort to put an end to
child
trafficking. The government has the resources and authority to
implement
the law, while community-based organizations have the grass-roots
level
contacts and trust necessary to facilitate this implementation.
Moreover, Non-Governmental Groups can act as a watchdog on
government
programs, keeping vigil for corruption, waste, and apathy. Neither
standing alone is sufficient. Child trafficking is a vast,
pernicious,
and long-standing social ill, and the tenacity of that must be
attacked
with similar tenacity; anything less than total commitment is
certain to
fail
References:
1) Study on trafficking by national commission for women &
national
human rights commission
2) Indian Penal Code by K.D. Gaur
3) All India Reporter Case Laws
4) Bombay Law Reporter
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Child Trafficking: Role for Judicial Activism
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The
author can be reached at:
aditisambhar@legalserviceindia.com /
