INDIA

Title:
Bachpan Bachao Andolan v. Union of India & Ors.

Court:
Supreme Court of India

Date:
18 April 2011

CRC Provisions:
No specific provisions cited

Other International Provisions:
UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children 2000
Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others 1950
UN Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules) 1985
UN Rules for the Protection of Juveniles Deprived of their Liberty 1990
Hague Convention on Inter Country Adoption 1993

Domestic Provisions:
Constitution of India, Articles 14-17, 21, 21A, 23-24, 32, and 39
Indian Penal Code 1860 (IPC), sections 41, 293, 319-329, 339-346, 350-351, 361-363, 365, 367, 370, 416, 420, 465-466, 468, 471, 503, and 506
Juvenile Justice (Care and Protection of Children) Act 2000, sections 18, 31(1), and 33(3)
Goa Children's Act 2003
Child Labour (Prohibition and Regulation) Act 1986
Children Pledging of Labour Act 1933
Bonded Labour System Abolition Act 1976
Factories Act 1948
Plantation Labour Act, 1951
Mines Act 1952
Merchant Shipping Act 1958
Apprentices Act 1961
Motor Transport Workers Act 1961
Bidi and Cigar Workers (Conditions of Employment) Act 1966
West Bengal Shops and Establishment Act 1963
Suppression of Immoral Traffic in Women and Girls Act 1956 (The Immoral Traffic (Prevention) Act 1956 (ITPA)), sections 7, 8, 8A, 8B, 15, and 17(3)
Right of Children to Free and Compulsory Education Act 2009, section 3, chapter 6
Child Welfare Act 1978

Case Summary:
Background:
Bachpan Bachao Andolan, an Indian-based movement, filed a public interest petition under Article 32 of the Constitution concerning the serious violations and abuse of children who are forcefully detained in circuses. The children are trafficked from impoverished parts of Nepal and India and forced to stay and perform in circuses where they are frequently sexually, physically and emotionally abused and kept in inhuman conditions. There are no labour or welfare laws which protect the rights of these children, and state agencies have failed to deal with the issue of child trafficking. The petition requested that the Court issue a number of orders or directions against the state, including: to frame appropriate guidelines for persons engaged in circuses; to conduct raids on circuses to liberate the children and examine the gross violations of their rights; to appoint special forces on the borders to prevent cross-border trafficking of children; to criminalise intra-state trafficking, bondage, forcible confinement, sexual harassment, and abuse of children; to empower the Child Welfare Committee under the Juvenile Justice (Care and Protection of Children) Act, 2000 to award compensation to child victims rescued from the circuses; and to prohibit the employment/engagement of children under 18 in circuses.

Issue and resolution:
Child trafficking, child labour, forceful detention, and other serious violations and abuse of children in circuses. The Court ordered, among other things, that: the employment of children in circuses be prohibited; raids be conducted on all circuses to liberate the children and examine the violations of their rights, and that the rescued children be kept in the Care and Protective Homes until they are 18; the state talk to the parents of the children, and in case they are willing to take their children back to their homes, they may be directed to do so after proper verification; and the state frame a proper scheme of rehabilitation of rescued children from circuses.

Court reasoning:
Children are entitled to special protection under the Constitution, as well as protection under the Juvenile Justice (Care and Protection of Children) Act and international treaties and conventions related to human rights and child rights, including the Convention on the Rights of the Child, to which India is a signatory. However, there are perpetual violations of the law with respect to children who are trafficked into circuses. The Court found that, from the comprehensive submissions made by the learned Solicitor General, it is clear that the Government of India is fully aware about the problems of children working in circuses and elsewhere. The Court made the above orders in light of the suggestions of the Solicitor General and others.

Excerpts citing CRC and other relevant human rights instruments:
10. There are no labour or any welfare laws, which protect the rights of these children. Children are frequently physically, emotionally and sexually abused in these places. The most appalling aspect is that there is no direct legislation, which is vested with powers to deal with the problems of the children who are trafficked into these circuses. The Police, Labour Department or any other State Agency is not prepared to deal with the issue of trafficking of girls from Nepal holding them in bondage and unlawful confinement. There is perpetual sexual harassment, violation of the Juvenile Justice Act and all International treaties and Conventions related to Human Rights and Child Rights where India is a signatory.

22. [...] 2. International conventions exist to punish and suppress trafficking especially women and children. (Refer: UN Protocol to Prevent, Suppress and Punish Trafficking in Persons also referred as the PALERMO Protocol on Trafficking). Trafficking is now defined as an organized crime and a crime against humanity. The convention being an international convention is limited to cross border trafficking but does not address trafficking within the country. The definition of trafficking is significant:- 21 " ..... The recruitment, transportation, transfer, harboring or receipt of persons by means of 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....".

3. Exploitation shall include at a minimum, the exploitation of the prostitutes of others or other forms of sexual exploitation, forced labour or service, slavery or practices similar to slavery, servitude or the removal of organs.

4. It is submitted that children under 18 years of age cannot give valid consent. It is further submitted that any recruitment, transportation, transfer, harbouring or receipt of children for the purpose of exploitation is a form of trafficking regardless of the means used. Three significant elements constitute trafficking:- a. The action involving recruitment and transportation;

b. The means employed such as force, coercion, fraud or deception 22 including abuse of power and bribes; and c. The purpose being exploitation including prostitution.

5. Internationally, there is a working definition of child trafficking. The working definition is clear because it incorporates the above three elements. In June 2001, India has adopted the PALERMO Protocol to evolve its working definition of child trafficking.

39. The Suppression of Immoral Trafficking Act was enacted after the Geneva Convention on Immoral Trafficking of Women and Children was signed by India in 1956. [...]

49. In a report submitted by the Ministry of Women and Child Development, 40% of India's children have been declared to be vulnerable or experiencing difficult circumstances. They are entitled to special protection under Articles 14, 15, 16, 17, 21, 23 and 24 of the Constitution. The concerns of child and the paradigm of child rights have been addressed suitably in various international conventions and standards on child protection including the UN Convention on the Rights of the Child (UNCRC), 1989, the UN Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules), 1985, the UN Rules for the Protection of Juveniles Deprived of their Liberty, 1990, the Hague Convention on Inter Country Adoption, 1993. India has ratified the UN Convention on the Rights of the Child in 1992. The Convention inter alia prescribes standards to be adhered by all state parties in securing the best interest of the child.

CRIN Comments:
CRIN believes that the substance of this decision is consistent with the CRC. CRIN notes certain relevant provisions of the CRC, in particular: Article 3 (best interests of the child); Article 32 (child labour, and the state’s obligation to set minimum ages for employment and regulate working conditions); Article 35 (prevention of the sale, trafficking and abduction of children); Article 37 (prohibition on deprivation of liberty); Article 19 (protection from abuse); Article 34 (protection from sexual exploitation); and Article 39 (rehabilitative care for child victims of abuse). This decision, however, fails to recognise the provisions of the Optional Protocol on the sale of children, child prostitution and child pornorgraphy, to which India is a signatory, regarding the state’s obligations to criminalise, investigate, and prevent certain acts of child exploitation.

Citation:
[2011] INSC 403

Link to Full Judgment:
http://www.liiofindia.org/in/cases/cen/INSC/2011/403.html

This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice.

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