THE TRAFFICKING OF CHILDREN IN INDIA: A LEGAL PERSPECTIVE
Updated: Mar 14, 2022
Trafficking of children has become a global challenge. It is one of the fastest-growing and most lucrative criminal activities affecting countless children. This article looks into the major causes of child trafficking in India and its aftermath. As we further research, we find out that there are major lacunae in legislative enactments and law enforcement that passively caters to the rise in child trafficking. The article focuses on the existing legal safeguards and the extent of their efficacy along with the landmark case laws which have aided the protection and rehabilitation of the victims. Certainly, the COVID-19 pandemic has left no lives untouched, the article inquires the impact of this pandemic on child trafficking as well. Finally, the means to combat the issue along with the conclusion are identified.
THE TRAFFICKING OF CHILDREN IN INDIA: A LEGAL PERSPECTIVE
“Every single minute matters, every single child matters, every single childhood matters.” -Kailash Satyarthi
Children are the greatest asset for every nation as they are the future nation builders. However, in the recent past, the issue of the trafficking of children has raised an alarm for the national as well as the international community. Therefore, special endeavors must be undertaken to combat this issue. The International Labour Organisation (ILO) estimates that 10,000 children are trafficked every year. According to the Census of 2011, the number of child laborers in India is 10.1 million. Only 10% of human trafficking in India is international while almost 90 percent is interstate. Out of the population of 121.1 Crore, India has 37.24 Crore in the age group of 0-14 years which constitutes 30.76% of the whole population. This clearly signifies that the issue of child trafficking is a threat to a large population of society.
DEFINITION AND MEANING OF CHILD TRAFFICKING
In general parlance, it means taking children out of their protective surrounding environment and subsequently preying upon their vulnerability for the basic purpose of exploitation.
According to the United Nations Convention on the Rights of the Child, 1989, ‘child’ means every human being below the age of eighteen years unless, under the law applicable to the child, the majority is attained earlier. However, according to the Immoral Traffic (Prevention) Act 1956, ‘child’ means a person who has not completed the age of sixteen years. This age keeps on varying under different statutes such as for the Juveniles Justice (Care and Protection of Children) Act, 2000, ‘child’ means a person who has not attained the age of eighteen years but according to Child Labour (Prohibition and Regulation) Act, 1986, ‘child’ means a person who has not completed the fourteenth year of age. In accordance with the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, 2000, child trafficking means “the recruitment, transportation, transfer, harboring or receipt”, kidnapping of a child for the purpose of slavery, forced labor and exploitation.
MAJOR CAUSES OF CHILD TRAFFICKING
Child trafficking is driven and maintained by multiple factors -
• Economic causes- Inequitable resources and absence of income sources are some of the primary causes of why children become the victims of traffickers. Therefore, children leave their homes to generate income. Increasing economic and social inequality is also a major factor.
• Social causes- Child-parent relations, social expectations, social insecurity, family conflicts, and poor parenting are some of the factors which influence the trafficking of children. Such situations expose children to traffickers and the traffickers utilize it.
• Political causes- Displacement and migration due to conflict in the native countries is a major cause of trafficking.
• Legal and policy lacunae- Free movement across the borders due to weak law enforcement facilitates child traffickers.
IMPACT OF CHILD TRAFFICKING
Trafficking is a nightmare for the victims with devastating consequences on the child for the rest of his/her life. The victims are forced to go through atrocious living and working conditions which affect both physically and psychologically. Depression, suicidal thoughts, helplessness, dissociation, self-blame, powerlessness, deflated self-esteem, distorted perception of sex, inability to trust other, phobias, loneliness, poor memory, dreaded diseases like HIV/AIDS due to lack of medical facilities, and social discrimination are some of the very commonly reported consequences. These experiences leave the children traumatized throughout their lives.
LEGISLATIVE SAFEGUARDS AGAINST CHILD TRAFFICKING
In India, trafficking in human beings has been prohibited under various statutes. Some of the major laws for this purpose are briefly discussed below-
• The Constitution of India- Articles 23 and 39 provides protection against trafficking, beggary, forced labor, and exploitation.
• Indian Penal Code, 1860- Sections 361, 366A, 366B, 366B and sections 369-374 of the Indian Penal Code provides punishments for various offenses against children and acts as a push factor for child trafficking.
• The Immoral Traffic (Prevention) Act, 1956 – The act makes sexual exploitation of children for commercial purposes, keeping a brothel, and living on the earnings of a prostitute a punishable offense.
• Child Labour (Prohibition and Regulation) Act, 1986- It prohibits the employment of children in certain occupations and lays down the conditions of work of children.
• Juveniles Justice (Care and Protection of Children) Act, 2000- This act provides for proper rehabilitation and development of children in need of care and protection.Apart from this national legislation, there are a number of laws enacted by various states to provide protection to children against traffickers such as the Karnataka Devadasi (Prohibition of Dedication) Act, 1982, The Bombay Prevention of Begging Act, 1959, The Goa Children’s Act, 2003, etc.
In this era of judicial activism, the Indian judiciary has played a commendable role in protecting the victims of child trafficking and providing them requisite rehabilitation. In Vishal Jeet v. Union of India, the apex court issued directions to the state government for setting up rehabilitation homes for children who are found begging in the streets and minor girls pushed into the flesh trade and setting up an advisory committee to make suggestions regarding the measures for eradicating child prostitution.
The public at Large v. State of Maharashtra and Ors. , the High Court of Bombay took a suo moto notice, and in its direction, a raid was carried out and around 473 minor girls and child sex workers were rescued. The court further held that a proper cell is created by the Women and Child Welfare Department of the state for their rehabilitation.
State v. Freddie Peats and Ors. was a case that pointed out the gravity of the persistence of child trafficking in our society. In this case, the accused was running a child sex racket for years and maintained destitute children in his orphanage to offer them to European sex tourists. In BandhuaMuktiMorcha v. Union of India and Ors. , the Supreme Court held that the exploitation of children must be banned and alternatives are evolved to provide the rescued children with education, healthcare, shelter, food, and means of livelihood with self-respect.
TRAFFICKING OF CHILDREN DURING COVID-19 The COVID-19
pandemic has amplified the problem of child trafficking manifolds. It has aggravated the social and economic inequalities in society which is one of the root causes of child trafficking. Loss of employment and salary cuts have pushed society more into poverty which is a key driver for child trafficking. The International Labour Organisation has estimated that there will be between 20.1-35 million more people in working poverty than before the pandemic. Closing of schools has resulted in an increase in the time child spends online and has therefore increased the risk of cyber trafficking including online sexual abuse and exploitation of children. Identification of the victims of child trafficking is difficult under normal circumstances itself and COVID-19 is making the task even more difficult. The victims are more exposed to getting infected by the virus, less equipped to protect themselves, and almost no access to healthcare. The increase in domestic violence reported during the pandemic is also an alarming indicator of the conditions of various victims of domestic servitude.
Children are the future nation builders and it is a mockery that millions of these innocent children are being trafficked in spite of so many laws in force. To combat the evil of child trafficking the primary focus should be on spreading awareness amongst the masses and educating and sensitizing the public. Various social welfare agencies and NGOs can definitely play a major role in this regard.
There is an urgent need for strict and comprehensive legislation on child trafficking which shall cover all the aspects of chill trafficking and not only prostitution. There should be a uniform age that defines a child under various legislations where it has been differently defined. Also, since poverty and unemployment are the major causes of trafficking, steps should be taken to eradicate the same.
Rehabilitation and recovery programs must be supported for the rescued victims of child trafficking which shall include education, shelter, medical facilities, development, nourishment, psychological counseling, skill development to help them in securing a means of livelihood, etc.
Lastly, the victims must be provided free legal aid as per Article 39A of the Constitution of India and compensation must be provided to the victims and their families.
ABOUT THE AUTHOR
NAME- PRAGATI BAJPAI
DESIGNATION- Research Intern at Stambh Organization India
INSTITUTION- Faculty of Law, University of Lucknow
‘Child Trafficking-Essentials’ (ILO’s International Labour Programme on the Elimination of Child Labour (IPEC), Geneva, 2010) https://www.ilo.org/ipecinfo/product/download.do?type=document&id=14616 accessed 01 June 2021. 2011
Census of India, Office of the Registrar General & Census Commissioner, Ministry of Home Affairs, Government of India https://censusindia.gov.in/2011census/population_enumeration.html accessed 04 June 2021 RumaBordoloi and ManashiNeog, ‘Analyzing the Root Causes of Child Trafficking Using Supply and Demand Logic’ (2016-17) 24 ALJ at 137 http://www.scconline.com/DocumentLink/8g4504mB accessed 02 June 2021. 2011 Census of India, Office of the Registrar General & Census Commissioner, Ministry of Home Affairs, Government of India https://censusindia.gov.in/2011census/population_enumeration.html accessed 04 June 2021 ‘Trafficking in Children (International Labour Organization) https://www.ilo.org/ipec/areas/Traffickingofchildren/lang--en/index.htm accessed 05 June 2021. United Nations Convention on the Rights of the Child 1989, Article 1https://www.ohchr.org/en/professionalinterest/pages/crc.aspx accessed 31 May 2021. The Immoral Traffic (Prevention) Act 1956, Section 2 (aa). The Juvenile Justice (Care and Protection of Children) Act 2000, Section 2(k). The Child Labour (Prohibition and Regulation) Act 1986, Section 2(ii). The United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children2000, Article 3(c).https://www.ohchr.org/en/professionalinterest/pages/protocoltraffickinginpersons.aspx accessed 01 June 2021. RumaBordoloi and ManashiNeog, ‘Analyzing the Root Causes of Child Trafficking Using Supply and Demand Logic’ (2016-17) 24 ALJ at 137 http://www.scconline.com/DocumentLink/8g4504mB accessed 02 June 2021. ShiffatSharmin and Abu Mohammad Atiqur Rahman, ‘Challenges in Combating Trafficking in Human Beings in South Asia: Need for A Right-Based Approach’ 59 (2017) JILI 265 http://www.scconline.com/DocumentLink/9zPgl9l8accessed 05 June 2021. RumaBordoloi and ManashiNeog, ‘Analyzing the Root Causes of Child Trafficking Using Supply and Demand Logic’ (2016-17) 24 ALJ at 137 http://www.scconline.com/DocumentLink/8g4504mB accessed 02 June 2021. Mohd. Ashraf and Mohd. Mohsin Beg, ‘Trafficking of Children in India: A Social Menace’ (2012-13) 20 ALJ 114 http://www.scconline.com/DocumentLink/KgMl13wP accessed 03 June 2021. Vishal Jeet v. Union of India (1990) 3 SCC 318: AIR 1990 SC 1412 http://www.scconline.com/DocumentLink/EkOfxH2D accessed 05 June 2021. The public at Large v. State of Maharashtra and Ors. 1997 (4) Bom. CP 171http://www.scconline.com/DocumentLink/0w0NBmt4 accessed 08 June 2021. State v. Freddie Peats and Ors., Session Court NO. 24/1992, Criminal Appeal No. 4/1996. BandhuaMuktiMorcha v. Union of India and Ors (1997) 10 SCC 549http://www.scconline.com/DocumentLink/00jAd7vuaccessed 10 June 2021 United Nations Office on Drugs and Crime, Impact of the COVID-19 Pandemic on Trafficking in Persons at 2https://www.unodc.org/documents/Advocacy-Section/HTMSS_Thematic_Brief_on_COVID-19.pdfaccessed 06 June 2021. International Federation of Red Cross and Red Crescent Society, COVID-19 Impact on Trafficking in Persons at 2https://media.ifrc.org/ifrc/wp-content/uploads/2020/06/Covid-19-TiP-Technical-guidance-FINAL-290520.pdfaccessed 08 June 2021.. Rhacel Salazar Parreñas, Maria Cecilia Hwang and Heather Ruth Lee, ‘What Is Human Trafficking? A Review Essay’ (2012) 37(4) Signs at 1016https://www.jstor.org/stable/10.1086/664472accessed 10 June 2021. United Nations Office on Drugs and Crime, Impact of the Covid-19 Pandemic on Trafficking in Persons at 2https://www.unodc.org/documents/Advocacy-Section/HTMSS_Thematic_Brief_on_COVID-19.pdf accessed 06 June 202