Constitutional laws in India

Child Trafficking: Role for Judicial Activism

Written by: Aditi Sambhar and Sudershani Ray - Law Student
Juvenile Law
Legal Service
  • 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 and 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 and 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 and 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 and 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.

    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.

    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 and 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.

    1) Study on trafficking by national commission for women and 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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    Trafficking in Women: Revisited:
    Trafficking of human beings is the recruitment, transportation, transfer and receipt of people for the purpose of exploitation (labour/sexual) by coercion, fraud, deceit, threat, abuse of power or position of vulnerability.

    Trafficking in Women and Children - An ounce of prevention is worth a pound of cure:
    Trafficking in Women and Children is the gravest form of abuse and exploitation of human beings. Thousands of Indians are trafficked everyday to some destination or the other and are forced to lead lives of slavery.

    Victims of Trafficking:
    The illicit and clandestine movement of persons across national borders, largely from developing countries and some countries with economies in transition, with the end goal of forcing women and girl children into sexually or economically oppressive and exploitative situations for profit of recruiters, traffickers and crime syndicates, as well as other illegal activities related to trafficking.

    Extent to Which Immoral Trafficking is Addressed:
    The most comprehensive definition of trafficking is the one adopted by the UN office of Drugs and Crime in 2000, known as the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, 2000 under the UN Convention against Transnational Organized Crime (UNTOC). This Convention has been signed by the government of India.

    Commercial Sex Workers:
    The commercial sex worker has been a universal being throughout civilization as prostitution is the so-called "oldest profession". The earliest known record of prostitution appears in ancient Mesopotamia.

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