Bachpan Bachao
Andolan Vs. Union of India & Others
J U D G M E N T
Dalveer Bhandari, J.
1.
This
petition has been filed in public interest under Article 32 of the Constitution
in the wake of serious violations and abuse of children who are forcefully
detained in circuses, in many instances, without any access to their families under
extreme inhuman conditions. There are instances of sexual abuse on a daily basis,
physical abuse as well as emotional abuse. The children are deprived of basic
human needs of food and water.
2.
It
is stated in the petition that the petitioner has filed this petition following
a series of incidents where the petitioner came in contact with many children who
were trafficked into performing in circuses. The petitioner found that circus is
one of the ancient forms of indigenous entertainment in the world, with humans having
a major role to play. However, the activities that are undertaken in these
circuses deprive the artists especially children of their basic fundamental
rights. Most of them are trafficked from some poverty-stricken areas of Nepal as
well as from backward districts of India. The outside world has no meaning for them.
There is no life beyond the circus campus. Once they enter into the circuses, they
are confined to the circus arena, with no freedom of mobility and choice. They are
entrapped into the world of circuses for the rest of their lives, leading a vagrant
tunnelled existence away from the hub of society, which is tiresome,
claustrophobic and dependent on vicissitudes.
3.
It
is submitted that the petitioner is engaged in a social movement for the emancipation
of children in exploitative labour, bondage and servitude. Bachpan Bachao Andolan
has been able to liberate thousands of children with the help of the judiciary and
the executive as well as through persuasion, social mobilization and education.
4.
It
is submitted that for the first time the petitioner came to know about the
plight of children in Indian circuses way back in 1996. At that time, the
petitioner had rescued 18 girls from a circus performing in Vidisha District of
Madhya Pradesh. This was possible after a complaint made by a 12 year old girl,
who managed to escape from the circus premises. Her complaint was that she and several
other Nepalese girls had been trafficked and forced to stay and perform in the circus
where they were being sexually abused and were kept in most inhuman conditions.
5.
Following
this incident, an organised attempt was made by the petitioner to understand
and learn more about the problem of child labour in Indian Circuses and how to
eradicate the same. This began in July 2002 with the initiation of a research on
the problem of child labour in Indian circuses. The findings in the abovementioned
research were compiled in a report termed "Eliminating Child Labour from
Indian Circuses".
6.
Once
all the above facts and figures were established, the petitioner decided to implement
a multi-pronged strategy to eradicate the practice of employing children in
Indian circuses. Simultaneously, preparations were made to put across the
problem in front of circus owners to make them aware of the moral and legal questions
pertaining to the use of children in circuses. The petitioner initiated a
dialogue with all the major circus owners and appealed to them to stop trafficking,
bondage, Child labour and other violations of child rights. The Indian Circus
Federation (for short `I.C.F.') responded positively but ironically this body
has a very thin representation from the circus industry with approximately less
than 10% of the big circuses and probably less than 20% of all the circuses
were members of this Federation.
7.
It
is submitted that the petitioner convened a meeting with the circus owners on the
18th and 19th August, 2003 where a few owners under the umbrella of I.C.F. agreed
to make a declaration that there shall be no further use of children in the circuses
in India and a full list of the children employed by them will be provided to
the petitioner and that they would voluntarily phase out all the children from their
circuses in a time bound manner. It was also decided that the petitioner and its
partner Non-Governmental Organizations (for short, NGOs) in Nepal will help in
repatriation and rehabilitation of liberated children.
8.
The
petitioner submitted that since the I.C.F. does not have enough influence even on
its own members, the agreement did not get implemented. However, the petitioner
kept on receiving information and complaints from several parents through the
NGOs working in Nepal. The petitioner sent the staff of his organization to cross-check
and reconfirm the facts in Bhairawa, Hetauda in Nepal and Siliguri in India and
found that organized crime of trafficking of children for Indian circuses, particularly
from Nepal is rampant. In February and March, 2004, the petitioner received
complaints from many Nepalese parents whose children have been trapped in
circuses for more than 10 years and had never been allowed to meet them on one
pretext or the other even after repeated requests to the circus owners. Majority
of the complaints were for the children in the Great Indian circus (a
non-federation circus) which was found to be located in Palakkad, Kerala. In
June, 2004, the petitioner came to know through credible NGOs and individuals working
in Hetauda, Nepal that the daughters of 11 parents were trapped into Great Roman
Circus in India. The petitioner has since then conducted several studies and
interviews with various people who are engaged in circus.
9.
The
petitioner further found that life of these children begins at dawn with training
instructors' shouting abuses, merciless beatings and two biscuits and a cup of
tea. After 3 to 5 shows and of lot of pervert comments of the crowds, the young
girls are allowed to go back to their tents around midnight. Even then, life might
have something else in store, depending upon the nature and mood swings of the
circus owners and managers. If any child complains about the inadequate amount of
food or the leaking tent in the rain or if a child is scared on the rope while
performing the trapeze, he/she is scolded and maltreated by the managers or employers
and sometimes even caned on one pretext or the other.
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.
11.
The
petitioner submitted that this Court in the case of N.R. Nair & Others v. Union
of India & Others upheld the rights of animals who are being made to
perform in these circuses after understanding their plight. The situation of children
in circuses is no different if not worse.
12.
The
petitioner has made various attempts to regulate and improve the conditions of
children in circuses including engaging the circus owners association. However,
none of them have derived good results. It is categorically submitted that the
petitioner does not want the circuses to be completely banned or prohibited but
there is a strong need to regulate this as any other industry including
ensuring safety and other welfare measures of all those who are working in circuses,
particularly the children. Almost all the circuses employ at least 50 persons and
therefore a large number of labour laws should be applied.
13.
The
petitioner seeks application of the provisions of the Juvenile Justice (Care
and Protection of Children) Act, 2000 and also suggests that intra-state trafficking
of young children, their bondage and forcible confinements, regular sexual harassment
and abuses should be made cognizable offences under the Indian Penal Code as well
as under section 31 of the Juvenile Justice Act. Children Welfare Committees
under the Juvenile Justice (Care and Protection of Children) Act, 2000 should be
empowered to award compensation to all those victims rescued from the circuses
with a time bound rehabilitation packages and the State Government to create a
fund of the same.
14.
Mostly,
these children are sold to the circus owners either by the agents or their
relatives or sometimes the poor parents are lured into the web by promising high
salaries, luxurious life etc. However, some exceptional circuses were also found
(only 4) that treated their employees marginally better and allowed them to avail
the privilege of limited movement outside the circus campus for limited time, but
child labour was prevalent in these circuses as well and artists were not given
minimum wages.
15.
The
petitioner has complained about living and working conditions of the children
and has enumerated the following broad categories which are setout as under:
i.
Insufficient
Space In almost all the circuses visited by the research team, the living conditions
were quite similar, but nonetheless deplorable. There are separate sleeping arrangements
for males and females, with the Company Girls segregated from the rest of the circus
troupe by a boundary. There are also separate tents for the families working in
the circuses. Usually 5 to10 and sometimes even more people are crammed into a single
tent, thus most of the child artists complain of insufficient space and lack of
personal space and privacy.
ii.
Meals
Most of the circuses provide two meals - lunch and dinner to the artists and tea
also two times from the canteen run by the management. The quantity and quality
of the food is variable, depending on the management. Most often, the food is inadequate
to satisfy the appetite of young growing children.
iii.
Sleep
Timings Sleep timings are also very erratic, depending upon the nature of the work
being performed by the child artists, though on a general trend most go to bed at
midnight after the last show is over, to be woken up at dawn for practise.
iv.
Poor
Sanitation There are no proper toilets and bathrooms. Make-shift toilets are
created on the circus ground near the tents and all the company girls have to share
it and the stench around them is unbearable. In general, condition of
sanitation in circuses is most pathetic. It also precipitates unhygienic
conditions that could lead to diseases. Invariably all the artists voiced their
dissatisfaction on the issue of sanitation and hygiene.
v.
No
Health Care Personnel Another important issue concerning the artists is the lack
of any health care personnel to look into their day-to-day health care needs as
well as the accidents that are so common in the circuses. The manger or the keeper
usually provides medication for common ailments such as fever, cold etc. and looks
into the first-aid needs of the artists. For a serious medical condition or an accident
during training or performance, the trainer or the manager usually accompanies the
patient to the nearest medical help. The management bears the charges of the treatment
during that time, but later deducts it from the salary of the incumbent. However,
some managements do bear the medical bill of the artists if a mishap occurs
during the performance or training. Overall, it can be said that the living
conditions inside the premises of the circus arena are squalid and deplorable,
with no facilities and basic amenities being provided to the circus artists, not
even proper sanitation.
vi.
High
Risk Factor Nature of the activities in circuses is such that the risk factor for
the artists is very high as accidents and mishaps during practise sessions and shows
are common phenomenon. On top of that, there are no health care personnel
employed by the circuses to look into the health care needs of the artists, even
at the time of emergency. It was found that the lives of the children was endangered
due to the risk factor involved in the circuses, especially those who were involved
in items like ring of death, well of death, sword items, rope dance etc. They
constituted 10% of the total number of children. Rest 60% fell in the medium risk
category while 30% were not involved in any risky items. Moreover, some
circuses either fail to or are ignorant about taking the necessary precautions,
which further heightens the risk involved. In fact, the research team witnessed
an accident while visiting one of the circuses.
vii.
Remuneration
Besides paying meagre salaries to the children, the management of some circuses
holds back the salaries of the children saying that they would be paid only to their
parents when they visit them, which rarely happens. Salary accounts are often manipulated
and the loss due to accidents or mishaps is not compensated.
viii.
Bound
by Contract The child artists are brought to the circuses to be contracted for 3
to 10 years and once the contract is signed/agreed upon by the parents or
guardians of the children, these young ignorant children are bound and indebted
to the circus management and are unable to break away from the circus, even if they
are discontented with their lives in the circus.
ix.
Daily
Routine hindering their All-round Development In the circus, their daily
routine starts with practising even before the sunrise (rigorous training session
initially) mostly accompanied with verbal and physical abuse and harsh physical
punishments at times, for the slightest error or no error at all. From afternoon
onwards until midnight, they are on the stage, performing and enthralling the audience
with their vivacity and wit. They cannot share their agony and grievances or
raise their voice against the torturous life they are forced to lead. For them,
there is no education, no play, no recreation and their life is confined to the
circuses without any exposure to the outside world. All this prohibits them from
knowing the other opportunities available, as they are aware of and are exposed
to just one aspect of life, that is the aspect they see in the circuses they work
in. Due to the cruel and inhuman attitude of the management in some circuses, which
imposes restrictions on the children for meeting their folks, and also due to the
traveling nature of the troupe, most of the children end up losing contact with
their parents, especially those across the border or residing at far off places
even within the country. And those fortunate few, who get a chance to meet their
parents, do so once or twice a year, either when their parents visit or when they
are allowed to go home. Consequently, they are exposed to a world which hinders
their psychological, spiritual and socio-economic development, with no
knowledge of their rights, duties and scope for a better future and thus, are left
with no other option but to continue working in the circuses for the rest of their
lives. Instability in life, due to the circus's nomadic existence, makes it
difficult for them to pursue formal education, resulting in a large number of illiterate
children and adults in circuses.
16.
The
employment of the children in circus involves many legal complications and in that
respect major complications are as under:
1. Deprivation of the children
from getting educated thereby violates their fundamental right for education enshrined
under Article 21A of the Constitution.
2. Deprivation of the child
from playing and expression of thoughts and feelings, thereby violating the fundamental
right to freedom of expression.
3. Competency to enter into
contract for working in circus. 4. Violation of statutory provisions of law like
Employment of Children's Act, 1938, The Children (Placing of Labour) Act, 1933,
The Child Labour (Prohibition and Regulation) Act, 1986, Minimum Wages Act, 1976,
The Prevention of Immoral Traffic Act, Equal Remuneration Act, 1976 and Rules made
thereunder and the Bonded Labour System (abolition) Act, 1976 read with rules made
their under, the Factories Act, 1948, Motor Transport Workers Act, 1961 etc.
4. Existing labour laws and
legitimacy of contracts of employment for children.
5. The legitimacy of contracts
of employment for children and working conditions.
17.
The
petitioner has given innumerable instances in the petition of abuse of children
in the circuses. All those instances demonstrate under what horrible and inhumane
conditions the children have to perform in the circuses.
18.
The
experiences of the petitioner are only a scratch on the surface and there are many
children who are being trafficked regularly into circuses. While it is not the
case of the petitioner that circuses should be completely banned and prohibited,
there is a strong need to regulate this as any other industry including ensuring
safety gears and other measures as are done in other countries.
19.
The
petitioner has filed the petition with the following prayers:
i.
Issue
a writ of mandamus or any other appropriate writ, order or direction, directing
the respondents to frame appropriate guidelines for the persons engaged in
circuses;
ii.
Issue
a writ of mandamus or any other appropriate writ, order or direction directing the
respondents to conduct simultaneous raids in all the circuses by CBI to liberate
the children and to check the gross violation of all fundamental rights of the
children;
iii.
Issue
a writ of mandamus or any other appropriate writ order or direction to appoint special
forces in the borders to ensure action and to check on the cross border
trafficking;
iv.
Issue
a writ of mandamus or any other writ order or direction applying the provisions
of the Juvenile Justice (Care and Protection of Children) Act, 2000 and make intra-state
trafficking of young children, their bondage and forcible confinements, regular
sexual harassments and abuses cognizable offences under the Indian Penal Code as
well as under section 31 of the Juvenile Justice Act.
v.
Issue
a writ of mandamus or any other appropriate writ order or direction to empower
child welfare committee under the Juvenile Justice (Care and Protection of Children)
Act, 2000 to award compensation may be awarded to all those victims rescued from
the circuses with a time bound rehabilitation package and the State Government
to create a fund for the same;
vi.
Issue
a writ of mandamus or any other appropriate writ order or direction to lay out a
clear set of guidelines prohibiting the employment/engagement of children up to
the age of 18 years in any form in the circuses.
20. This court issued
notices to the Union of India and other States and Union Territories. Replies
have been filed on behalf of various States and the Union Territories.
21. Shri Gopal Subramanium,
the learned Solicitor General appearing for the Union of India has filed written
submissions with the heading "The Indian Child : India's Eternal Hope and
Future".
22. Learned Solicitor
General has broadened the scope of this petition and has tried to deal with the
problem of children trafficking. He submitted that:
i.
Trafficking
in human beings is not a new phenomenon. Women, children and men have been captured,
bought and sold in market places for centuries. Human trafficking is one of the
most lucrative criminal activities. Estimates of the United Nations state that 1
to 4 million people are trafficked worldwide each year. Trafficking in women
and children is an operation which is worth more than $ 10 billion annually. The
NHRC Committee on Missing Children has the following statistics to offer:- a. 12.6
million (Governmental sources) to 100 million (unofficial sources) stated to be
child labour; b. 44,000 children are reported missing annually, of which 11,000
get traced; c. About 200 girls and women enter prostitution daily, of which 20%
are below 15 years of age.
ii.
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:- " ..... 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....".
iii.
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.
iv.
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 including abuse of power and bribes; and
c. The purpose being exploitation including prostitution.
v.
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.
vi.
The
forms and purposes of child trafficking may be:-
a. Bonded labour;
b. Domestic work;
c. Agricultural labour;
d. Employment in construction
activity;
e. Carpet industry;
f. Garment industry
g. Fish/Shrimp Export;
h. Other sites of work in
the formal and informal economy.
i.
ii.
iii.
iv.
v.
vi.
vii.
Trafficking
can also be for illegal activities such as:-
a. Begging;
b. Organ trade;
c. Drug peddling and
smuggling;
i.
ii.
iii.
iv.
v.
vi.
vii.
viii.
Trafficking
can be for sexual exploitation, i.e.
a. Forced prostitution;
b. Socially and religiously
sanctified forms of prostitution;
c. Sex tourism;
d. Pornography;
ix.
Child
trafficking can be to aid entertainment in sports:-
a. Circus/dance
troupes;
b. Camel jockeying;
x.
Trafficking
can be for and through marriage. Trafficking can be for and through adoption. It
is submitted that intervention is possible in cases of child trafficking only if
fundamental principles are kept in mind. The fundamental principles are the following:-
a. The child has to perform
to the best of his ability. The growth of a child to its potential fulfillment is
the fundamental guarantee of civilization;
b. Empathy for troubled children
by adopting non-discriminatory and attitudes free of bias; c. Children must be protected
in terms of well-being under all circumstances;
c. Right to freedom from
all forms of exploitation is a fundamental right; e. Confidentiality of the child
in respect of the child's privacy must be maintained;
d. Trafficking is an organized
crime which could have multiple partners including syndicates.
xi.
Intervention
must be a joint initiative of government and non-governmental organizations which
can be, in some cases, potential partners. An effective intervention must in all
circumstances lead to effective and enduring protection of children from exploitation,
abuse and violence.
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
According
to the Solicitor General it is the bounden duty of the police to discharge its
obligation. He submitted that the following guidelines should be mandated:
i.
Care
must be taken to ensure the confidentiality of the child and due protection
must be given to her/him as a witness;
ii.
The
detailed interview of the victim should be done preferably by crisis intervention
centres/members of the Child Welfare Committee under the Juvenile Justice Act. There
should be adequate breaks and intervals during the interview with a child
victim;
iii.
If
the police employ a child friendly approach to the entire investigation, the
possibility of getting all relevant information gets higher. This can be done
by having a supportive environment for the child at the police station wherein attention
is paid to his needs. This can be done at the police station itself or at any other
place co- managed by police any NGO/CBO. Support persons for the child should
be contacted and in their absence, any civil society group working with/for children
or members of CWC (whoever the child feels comfortable with) could be asked to
the present;
iv.
Due
care must be maintained to attend the issues like interpreters, translators, record
maintaining personnel, audio-video recording possibilities etc.;
v.
As
far as possible, the same investigation officer must follow up the case from
investigation stage to the trial stage;
vii.
There
should be provision of good and water as well as toilet facilities for the
child in the police station and the hospital;vii. No child should be kept in a
Police Station;
viii.
Where
a special juvenile police unit or a police officer has been designated to deal with
crimes against children and crimes committed by children, cases relating to children
must be reported by such officer to the Juvenile Justice Board or the child welfare
committee or the child line or an NGO as the case may be.
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
It
is submitted that Articles 23, 39, 14 and 21 of the Constitution of India
guarantee every child to be freed from exploitation of any form. Article 23 prohibits
traffic in human beings, `beggar' and other forms of forced labour.
25.
Force,
assault, confinement can be dealt with under sections 319 to 329 for simple and
grievous hurt, sections 339 to 346 for wrongful restraint and wrongful
confinement; sections 350 to 351 for criminal force and criminal assault;
section 370 for import, export, removal, disposing/accepting, receiving,
detaining of any person as a slave; section 361 to 363 kidnapping and
abduction; section 365 for kidnapping, abduction for wrongful confinement; section
367 for kidnapping, abduction for slavery or to subject a person to grievous injury;
sections 41, 416, 420 for fraud, cheating by personation; sections 465, 466, 468
and 471 for forgery and using forged documents as genuine; section 503 and 506 for
criminal intimidation. It is submitted that a direction must be issued to the
Commissioner of Police, Delhi and the State Governments and Union Territories
that their police force are required to be sensitized to the above provisions while
dealing with safety and freedom of children.
26.
The
Juvenile Justice (Care and Protection of Children) Act, 2000 was amended in
2006 by Act 33 of 2006. It is a special legislation for children and defines children
as `a person upto the age of 18 years'. The Juvenile Justice Act is build upon a
model which addresses both children who need care and those who are in conflict
with law.
27.
According
to the learned Solicitor General, the Goa Children's Act, 2003 must be viewed
as a model legislation. He submitted that not only does it define child trafficking
but also seeks to provide punishment for abuse and assault of children through child
trafficking for different purposes such as labour, sale of body parts, organs,
adoption, sexual offences of pedophilia, child prostitution, child pornography
and child sex tourism. All state authorities such as airport authorities,
border police, railway police, traffic police, hotel owners are made
responsible under the law for protection of children and for reporting offences
against children. It is submitted that until a suitable legislation is enacted,
directions of a preventive nature may be issued against the police authorities in
all States to protect the rights of children.
28.
Learned
Solicitor General submitted that there is blatant violation of Child Labour (Prohibition
and Regulation) Act, 1986, Children Pledging of Labour Act, 1933, the Bonded Labour
System Abolition Act, 1976, the Factories Act, 1948, the Plantation Labour Act,
1951, the Mines Act, 1952, the Merchant Shipping Act, 1958, the Apprentices Act,
1961, the Motor Transport Workers Act, 1961, the Bidi and Cigar Workers (Conditions
of Employment) Act, 1966, the West Bengal Shops and Establishment Act, 1963.
29.
Learned
Solicitor General submitted that each State Government must constitute
committees for the purpose of preventing child labour. It is submitted that there
should be an apex committee constituted by each State Government with the
following: (a) The Chief Secretary of the State; (b) Secretary incharge of Child
and Women Development; (c) Director of Health and Family Welfare; (d) Commissioner
of Police of the State; (e) Two Psychiatrists to be nominated by the Indian Psychiatric
Society.
30.
The
State Government with the assistance of the said committee by a transparent process
will constitute committees for each district consisting of health workers,
police personnel, factory inspectors and people from the civil society/NGO. The
committee will be able to inspect and determine whether there is forced
employment of children.
31.
All
dhabas/restaurants must be prohibited from employing children. It is necessary that
this stipulation which already exists must be effectively enforced.
32.
Learned
Solicitor General submitted that in the Ministry of Family Welfare and Child Development,
a division needs to be created to deal with issues arising out of dissemination
of publications which are harmful to young persons, publishing pornographic material
in electronic form as well as the enforcement of section 293 of the Penal Code.
It is submitted that a further research study must be undertaken on the efficacy
of the provisions of the Young Persons Harmful Publications Act, 1956, Section 67
of the Information Technology Act, 2000 and Section 293 of the Penal Code.
33.
The
Transplantation of Human Organ Act, 1994 makes removal of human organs without
authority and commercial dealing in human organs criminally liable.
34.
In
a brilliant study undertaken by the Government of Indian in coordination with UNICEF,
areas relating to trafficking have been acknowledged. It is submitted that the central
government acknowledges the increasing prevalence of trafficking for the purpose
of commercial sexual exploitation of children. In a study1 published by the
Department of women and child development, Ministry of 1 Rescue and
Rehabilitation of Child Victims Trafficked for Commercial Sexual Exploitation,
a Report by UNICEF. Human Resource Development, Govt. of India, the objectives
were:-
a. To obtain a better understanding
of rescue and rehabilitation processes;
b. To gain a more complete
understanding of the involvement of the state, the judiciary, law enforcement agencies,
and NGOs engaged in rescue and rehabilitation;
c. To make
recommendations on the need for developing guidelines for rescue and rehabilitation.
These guidelines should
represent a common denominator of nationally agreed standards in this area as well
as take regional variations into account. The following statistics are
alarming:-
i.
There
are an estimated two million children, aged between 5 and 15, forced into CSE around
the world;
ii.
Girls
between the ages of 10 and 14 years are most vulnerable;
iii.
15%
of commercial sexual workers in India are believed to be below 15 years old and
25% are estimated to be between the ages of 15 and 18;
iv.
500,000
children worldwide are forced into this profession every year.
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
27.
28.
29.
30.
31.
32.
33.
34.
35.
It
is submitted that the report dealt with cross border trafficking in the
following way:- "Research on cross-border trafficking has indicated that
5000-7000 young Nepali girls were trafficked into India annually. This research
also highlighted the fact that in the last decade, the average age of the trafficked
girl has steadily fallen from 14 to 16 years to 10 to 14 years. These findings are
supported by studies conducted by Human Rights Watch - Asia in 1995, which
stated that the average age of Nepali girls trafficked into India dropped from 14
to 16 years in the 1980s to 10 to 14 years in 1991 despite the introduction of laws
designed to combat trafficking of minors. Ghosh's study estimated that Nepali children
constitute 20 per cent (40,000) of the approximately 2,00,000 Nepalese commercial
sexual workers in India. Young girls are trafficked from economically depressed
neighbourhoods in Nepal and Bangladesh to the major prostitution centres in Delhi,
Mumbai and Calcutta. Social workers have reported encountering children as
young as nine in Kamathipura, a red light area in Mumbai."
36.
The
promise of marriage, employment is often used for luring young children into sexual
trade. The report also talks about the trafficking of children in urban
brothels and the regional variations. The report describes how trafficking is
undertaken.
37.
Trafficking
in women and children has become an increasingly lucrative business especially since
the risk of being prosecuted is vey low. Women and children do not usually come
to the brothels on their own will, but are brought through highly systematic, organized
and illegal trafficking networks run by experienced individuals who buy, transport
and sell children into prostitution. Traffickers tend to work in groups and children
being trafficked often change hands to ensure that neither the trafficker nor
the child gets caught during transit. Different groups of traffickers include gang
members, police, pimps and even politicians, all working as a nexus. Trafficking
networks are well organized and have linkages both within the country and in the
neighbouring countries. Most traffickers are men. The role of women in this
business is restricted to recruitment at the brothels.
38.
The
typical profile of a trafficker is a man in his twenties or thirties or a woman
in her thirties or forties who have travelled the route to the city several
times and know the hotels to stay in and the brokers to contact. They
frequently work in groups of two or more. Male and female traffickers are sometimes
referred to as dalals and dalalis (commission agents) respectively and are
either employed by a brothel owner directly or operate independently. Often
collusion of family members forms an integral part of trafficking with uncles, cousins
and stepfathers acting as trafficking agents. In March, 1994 Human Rights Watch
Asia interviewed several trafficked victims of whom six were trafficked into
India from Nepal with the help of close family friends or relatives. In each
case, the victim complained of deception.
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. In
order to have data on the success of rehabilitation strategies, delivery points
in rehabilitation strategy would have to be strengthened as would be seen in
the later parts of this report. It is submitted that a trafficker never blows
the gaff. It is done in silence and quiet. It becomes necessary to involve police
authorities by means of acute sensitization to a realm of illegality. Therefore,
there has to be a special initiative taken by police with reference to
children.
40.
The
Central Government has evolved the national plan of action to combat trafficking
and commercial sexual exploitation of women and children in 1998.
41.
It
is submitted that there has now been a very careful realization that the plan
for rescue and rehabilitation must be through a conceptual map. The said map gives
a very good indication of the initiatives and possibly its positive and
negative outcomes.
42.
Learned
Solicitor General submitted that a trafficked child can be brought before the Magistrate
under two circumstances: a) when the raid/search or removal takes place by a police
action under section 15 of the ITPA or when the Magistrate herself/himself
passes rescue orders; b) the trafficked child can also be brought before the Magistrate
as an accused under section 8A and 8B of the ITPA. The following directions are
necessary:-
a. Every Magistrate before
whom a child is brought must be conscious of the provisions of the Juvenile
Justice (Care and Protection of Children) Act, 2000;
b. He must find out
whether the child is below the age of 18 years;
c. If it is so, he
cannot be accused of an offence under section 7 or 8 of ITPA;
d. The child will then have
to be protected under Juvenile Justice Authority;
e. The Magistrate has a responsibility
to ascertain and confirm that the person produced before her or him is a child by
accurate medical examination;
f. The definition of a
child in section 2K means a juvenile or a child as a person who has not completed
18 years of age;
g. Once the age test is passed
under section 17(2) establishes that the child is a child/minor less than 18 years
of age, the Magistrate/Sessions Judge while framing charges must also take into
account whether any offences have been committed under sections 342, 366, 366A,
366B, 367, 368, 370, 371, 372, 373, 375 and if so, he or she must also frame
charges additionally;
h. The child should be
considered as a child in the protection of the Child Welfare Act.
i. The child should be handed
over to the Child Welfare Committee to take care of the child. The performance
of the Child Welfare Committees must be reviewed by the High Court with a committee
of not less than three Hon'ble Judges and two psychiatrists;
j. A child must not be charged
with any offence under the ITPA or IPC;
k. A minor trafficked
victim must be classified as a child in need of care and protection. Further, the
Magistrate must also order for intermediate custody of minor under section 17(3)
of the ITPA, 1956;
l. There should not be
any joint proceedings of a juvenile and a person who is not a juvenile on account
of section 18 of the Juvenile Justice (Care and Protection) Act, 2002;
m. It is necessary that
Courts must be directed that the same lawyer must not represent the trafficker
as well as the trafficked minor;
n. Evidence of child should
be taken in camera. Courts must protect the dignity of children. The children's
best interest should be the priority.
43.
Learned
Solicitor General submitted that Child Welfare Committees are empowered
committees under section 31(1) of the Juvenile Justice Act. However, the standards
employed by the Child Welfare Committees are not the same across the country. In
order to set up uniform standards, the direction relating to review of Child
Welfare Committees must be re-examined. All Superintendents of Jail must report
upon a review within 15 days from today whether any person who is a child is in
custody of the jail, if so, the said person must be produced immediately before
the Magistrate empowered to try offences under the Juvenile Justice (Care and
protection) Act, 2000. The said Magistrate must set out a report in relation to
the circumstances under which such a child has been lodged in jail to the Chief
Justice of the concerned High Court. Thereafter the High Court may forward a report
to this Court for passing of appropriate orders in relation to the welfare of
the child.
44.
Learned
Solicitor General submitted that the power of rehabilitation is necessary. The said
power has been conferred under section 33(3) of the Juvenile Justice (Care and Protection)
Act, 2000. The said provision provides that:- "..... After the completion of
the enquiry if the Committee is of the opinion that the said child has no family
or ostensible support, it may allow the child to remain in the children's home or
shelter home till suitable rehabilitation is found for him or till he attains
the age of 18 years....".
45.
It
is further submitted that rehabilitation will be the measure of success of the Juvenile
Justice (Care and Protection) Act, 2000. Reintegration into society by means of
confident and assertive occupations leading to a sense of self-worth will have
to be devised. This requires innovative strategies and not any high flown claims
to social development.
46.
The
Juvenile Welfare Board will have no competence to deal with cases of children who
are in prostitution or have been trafficked. Such children are to be considered
as children in need of care and protection. However, in states where the Child Welfare
committees have not been constituted, these matters should be referred to the
Juvenile Welfare Board. It is submitted that the book on Trafficking in Women and
Children in India edited by Shanker Sen along with P.M. Nair, IPS is a useful
document. In a report called "Abolition of Child Labour in India"
submitted by the NCPCR to the planning commission, certain useful perspectives
are to be found.
47.
It
is submitted that India is home to 19% of world's children. More than one-third
of the country's population around 440 million is below 18 years. India's
children are India's future. They are the harbingers of growth, potential
fulfillment, change, dynamism, innovation, creativity. It is necessary that for
a healthy future, we must protect, educate and develop the child population so that
their citizenry is productive. Resources must be invested in children
proportionate to their huge population.
48.
As
far as the total expenditure on children in 2005-2006 is concerned, it was 3.86%
and in 2006-2007 it was increased to 4.91%. It is highly inadequate looking to the
population of children.
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.
50.
Learned
Solicitor General submitted that the millennium development goals cannot be secured
unless child protection is an integral part of programmes, strategies and plans
for their achievement. The newly constituted Ministry of Women and Child
Development has rightly remarked that child protection is an essential part of
the country's strategy to place `Development of the child at the Centre of the
11th Plan'. The National Plan of Action for Children articulates a rights
agenda for the development of children.
51.
Learned
Solicitor General further submitted that the existing child protection mechanisms
have to be first noticed. The delivery points however need to be strengthened. To
review the delivery of these programmes, there must be nodal agencies. Points
of responsibility have to be identified and strengthened. The programme for
juvenile justice is to enable children in need of care and protection and those
in conflict with law to be secured. The central governments provide financial assistance
to the state governments/UT administrations for establishment and maintenance
of various homes, salary of staff, food, and clothing for children in need of care
and protection of juveniles in conflict with law. Financial assistance is based
on proposals submitted by States on a 50:50 cost sharing basis.
52.
It
is submitted by the learned Solicitor General that in order to give effect to
the programme for juvenile justice, it is necessary that nodal points have to be
identified. The child welfare committee is one such body, but it is necessary that
the working of the child welfare committee must be overseen by either the Executive
Chairman of the Legal Services Authority or by the High Court itself. It is also
necessary that the financial assistance being provided for children in need and
care must result in tangible results to the children whose future is sought to be
rehabilitated. For that purpose, it is appropriate that a Court monitored
mechanism is established. For every juvenile home, a District Judge or a Judge
nominated by the Chief Justice of the High Court should be a visitor. There
must be periodic internal reports which are given to the High Court and just as
in case of prisons, juvenile homes must be monitored by courts and their living
conditions must also be carefully examined.
53.
It
is also submitted by the learned Solicitor General that the point of
responsibility for overseeing the conditions in the juvenile home must also be shared
by the District Magistrate of each district. It is necessary that there should
be dual reporting - one to the Judicial Section of the High Court; and the
other to the District Magistracy and onwards to the State Government. Each State
Government must open a Juvenile Justice Cell which will receive periodic
reports of juvenile homes, the number of children, the status of children, the manner
of rehabilitation and the current status. The State Government must also ensure
that therapeutic help as well as psychiatric assistance wherever necessary is offered
to the juveniles on a top priority basis. District Collectors must submit their
reports to the Secretary of the Department concerned who in turn must report to
the Chief Secretary. The Chief Secretary must be constructively responsible for
the administration of the programme for juvenile justice and also must
supervise the monetary spending and the manner in which the money spent has been
duly accounted. Thus a certification programme for spending monies based on central
schemes must be introduced. This certification must be by an independent authority
that will ensure that the monies allocated have in fact been spent for the
benefit and welfare of the children. If the home is situated within a panchayat
area, then the chairman of the panchayat or the zila parishad must be also made
responsible for certifying that all the monies which were intended for the home
in terms of grants or subventions have been duly utilised.
54.
It
is further submitted by the learned Solicitor General that the Integrated Child
Protection Programme for Street Children is also a scheme by which NGOs are
supposed to run 24 hour shelters and to provide food, clothing, shelter,
non-formal education, recreation, counseling, guidance and referral services
for children. Considering the vulnerability of the children, all NGOs must be
directed to be registered with the concerned Collector. There must be a
database of every NGO including details of all the functionaries of the NGO with
full particulars including their addresses. In order to enable the enrolment in
schools of street children, vocational training, occupational placement and to
mobilize preventive health services including reduction of drug and substance abuse,
a nodal point is necessary. The nodal point must be either a Sub Divisional
Magistrate/Executive Magistrate whose work will be countersigned by a
subordinate Judge appointed by the District Judge of the District. Similarly,
database must be maintained in relation to the children, their parentage, present
status and the present condition of their educational qualifications and
whether they are capable of vocational training. It is important that occupational
therapists must be able to assess on the basis of modern IQ and aptitude tests
about the way in which such children can be taken forward to mainstream living
by offering vocational guidance. Offering children under difficult circumstances,
relevant support is an obligation and should not be a matter of charity
fortuitousness in terms of magnanimous dispensation.
55.
Learned
Solicitor General also gave suggestions as under: Child-line services are provided
for children in distress: These should be catalogued and there should be a central
registry which will provide information about the status of the child-line
services at the local level. It should be the District Magistrate who must be responsible
for the effect running of the child-line service. All District Magistrates in the
country must post on the website their child-line service number and must give effective
publicity to the services available and invite members of civil society to
report any child in distress at numbers. Shishu Griha to promote in-country adoption:
Details of the working of the said scheme need to be collected and a database must
be maintained in respect of orphans/ abandoned / destitute infants or children
upto 6 years. The adoptive parents must be obliged to give reports to the
District Judge who will in turn examine whether the adoptive parents have taken
care of the child failing which adequate court-monitored measures may be
necessary. Schemes for working children in need of care and protection: This
scheme is very important. Children who are engaged as domestic labour, working
at roadside dhabas and mechanic shops have to be rescued and a bridge education
has to be provided including vocational training. This must be undertaken again
by identifiable points of responsibility. It is necessary that an Executive Magistrate
must be allocated a certain area to be covered where children are rescued. This
should be undertaken by a District Magistrate dividing his district in suitable
divisions where such Executive Magistrates can rescue working children. They
need to be rehabilitated. It is important that rescue will be effective only when
there is scope for rehabilitation. It should not happen that in the name of
rehabilitation children are put in detention homes or remand homes. That would
be an act of cruelty.
56.
Learned
Solicitor General further gave suggestions including Pilot Project to combat the
trafficking of women and children for commercial sexual exploitation as under:
Pilot Project to combat
the trafficking of women and children for commercial sexual exploitation: This
is a source and destination area for providing care and protection to trafficked
and sexually abused women and children. Components of the scheme include networking
with law enforcement agencies, rescue operation, temporary shelter for the victims,
repatriation to hometown and legal services, etc. Central Adoption Resource
Agency (CARA): It is an autonomous body under the Ministry of Women and Child
Development to promote in-country adoption and regulate inter-country adoption.
CARA also helps both Indian and foreign agencies involved in adoption of Indian
children to function within a regulated framework, so that such children are adopted
legally through recognised agencies and no exploitation takes place. National Child
Labour Project (NCLP) for rehabilitation of child labourers: Under the Scheme, project
societies at the district level are fully funded for opening up of Special Schools/Rehabilitation
centers provide non-formal education, vocational training, supplementary nutrition,
stipends, etc. to children withdrawn from employment. The Ministry of Women and
Child Development has actually in an outstanding report identified the shortcomings
and gaps in existing child protection institutions. The reasons for limitations
in effective implementation of programmes have been properly identified. The
reasons are as follows:
Lack of Prevention: Policies,
programmes and structures to prevent children from falling into difficult
circumstances are mostly lacking. This pertains both to policies to strengthen and
empower poor and vulnerable families to cope with economic and social hardship and
challenges and thus be able to take care of their children, as well as to
efforts to raise awareness of all India's people on child rights and child
protection situation. Poor planning and coordination:
i.
Poor
implementation of existing laws and legislations;
ii.
Lack
of linkages with essential lateral services for children, for example,
education, health, police, judiciary, services for the disabled etc;
iii.
No
mapping has been done of the children in need of care and protection or of the services
available for them at the district, city and state levels;
iv.
Lack
of coordination and convergence of programmes/services;
v.
Weak
supervision, monitoring and evaluation of the juvenile justice system.
Services are
negligible relative to the needs:
i.
Most
of the children in need of care and protection, as well as their families do
not get any support and services;
ii.
Resources
for child protection are meagre and their utilization is extremely uneven
across India;
iii.
Inadequate
outreach and funding of existing programmes results in marginal coverage even
of children in extremely difficult situations;
iv.
Ongoing
large scale rural urban migration creates an enormous variety and number of problems
related to social dislocation, severe lack of shelter and rampant poverty, most
of which are not addressed at all;
v.
Lack
of services addressing the issues like child marriage, female foeticide,
discrimination against the girl child, etc;vi) Little interventions for children
affected by HIV/AIDs, drug abuse, militancy, disasters (both manmade and natural),
abused and exploited children and children of vulnerable groups like commercial
sex workers, prisoners, migrant population and other socially vulnerable groups,
etc;
vi.
Little
interventions for children with special needs, particularly mentally challenged
children.
Poor infrastructure
i.
Structures
mandated by legislation are often inadequate;
ii.
Lack
of institutional infrastructure to deal with child protection;
iii.
Inadequate
number of CWCs and JJBs.
iv.
Existing
CWCs and JJBs not provided with requisite facilities for their efficient functioning,
resulting in delayed enquiries and disposal of cases.
Inadequate human
resources
i.
Inappropriate
appointments to key child protection services leading to inefficient and non- responsive
services;
ii.
Lack
of training and capacity building of personnel working in the child protection
system;
iii.
Inadequate
sensitization and capacity building of allied systems including police, judiciary,
health care professions, etc;
iv.
Lack
of proactive involvement of the voluntary sectors in child protection service
delivery by the State UT Administrations;
v.
Large
number of vacancies in existing child protection institutions.
Serious service gaps
i.
Improper
use of institution in contravention to government guidelines;
ii.
Lack
of support services to families at risk making children vulnerable;
iii.
Overbearing
focus on institutional (residential care) with non-institutional (i.e. non-residential)
services neglected;
iv.
Inter-state
and Intra-state transfer of children especially for their restoration to families
no provided for in the existing schemes;
v.
Lack
of standards of care (accommodation, sanitation, leisure, food etc.) in all institutions
due to lower funding;
vi.
Lack
of supervision and commitment to implement and monitor standards of care in institutions;
vii.
Most
24-hour shelters do not provide all the basic facilities required, especially availability
of shelter, food and mainstream education;
viii.
Not
all programmes address issues of drug abuse, HIV/AIDS and sexual abuse related vulnerabilities
of children;
ix.
None
of the existing schemes address the needs of child beggars or children used for
begging;
x.
Minimal
use of non-institutional care options like adoption, foster care and
sponsorship to children without home and family ties; xi) No mechanism for
child protection at community level or involvement of communities and local bodies
in programmes and services;
xi.
Serious
services and infrastructure gaps leading to few adoptions;
xii.
Cumbersome
and time consuming adoption services;
xiii.
Lack
of rehabilitation services for old children not adopted through regular
adoption processes;
xiv.
Aftercare
and rehabilitation programme for children above 18 years are not available in all
states, and where they do exist they are run as any other institution under the
JJ Act, 2000.
57.
It
is further submitted by the learned Solicitor General that the above needs to be
addressed by interventional orders of this Court in the exercise of its extraordinary
jurisdiction under the Constitution. Points of implementation must be identified.
58.
Learned
Solicitor General further submitted that each State Government must identify an
officer who is responsible for implementation of schemes in relation to
children. There must be a parallel linkage between a point of contact of the Collectorate/Executive
Administration with a point in Legal Aid i.e. the Executive Chairman of the
State Legal Services Authority and a point in the NGO Sector/Civil Society. Similarly,
points must be identified in each Zila Parishad and Panchayat Samiti and Gram
Panchayats. In fact, the Presiding Officers of the gram Nyayalayas may also be
encouraged to identify children who are vulnerable and who need protection. The
Integrated Child Protection Scheme is presently in place. It seeks to
institutionalize essential services and strengthen structures; it seeks to
enhance capacities at all levels; it seeks to create database and knowledge base
for child protection services; it needs to strengthen child protection at family
and community level. The guiding principles are neatly formulated in this scheme.
These must be implemented. The adoption programme will be governed by the following
guiding principles:
i.
Best
interest of the child is paramount;
ii.
Institutionalization
(e.g. placement into residential care) of the child should be for the shortest
possible period of time;
iii.
All
attempts should be made to find a suitable Indian family within the district, state
or country;
iv.
The
child shall be offered for inter-country adoption only after all possibilities for
national adoption, or other forms of family based placement alternatives such as
placement with relatives (kinship care), sponsorship and foster care arrangements
have been exhausted;
v.
All
institutions should disclose details about children in their care and make sure
that those free for adoption are filed and recorded with the State Adoption Resource
Agency (SARA) and CARA, with all supporting documentation of authorization of
such adoption from CWC;
vi.
Inter-state
coordination to match the list of Prospective Adoption Parents (PAPs) with that
of available children should be done by SARAs;
vii.
No
birth mother/parent(s) should be forced/coerced to give up their child for monetary
or any other consideration;
viii.
Adoption
process from the beginning to end shall be completed in the shortest possible time;
ix.
Monitoring,
regulating and promoting the concept and practice of ethical adoptions in the
country should be ensured;
x.
Agencies
involved in the adoption process should perform their duties in a transparent manner,
following rules of good governance and adhering to the professional and ethical
code of conduct. Those agencies shall be reporting to and will be subject to rigorous
auditing and supervision by responsible State bodies.
59.
The
most outstanding feature of this scheme which needs to be implemented on a
full-time and firm basis is the government civil society partnership. This will
involve active involvement of the voluntary sector, research and training
institutions, law college students, advocacy groups and the corporate sector. It
should be the duty of the Health Secretary of each state government including under
the chairmanship of the Health Secretary, Government of India to have a
blueprint for implementing the Government - Civil Society initiative. It is necessary
that there must be a 6-monthly strategy plan which must be prepared by the
state government and also by the central government in this regard.
60.
The
ICPS programmes are now brought under one umbrella and are as follows:
a. Care, support and rehabilitation
services through child-line;
b. Open shelters for children
in need in urban/semi-urban areas;
c. Family based non-institutional
care through sponsorship, foster care, adoption and aftercare.
61.
It
is necessary that poor families must be discouraged from placing their children
into institutional care as a poverty coping measure. Institutionalized children
have to be re-integrated into families. The following portion of the
sponsorship scheme is relevant:- "3.1 It is submitted that this can be monitored
by a representative of the Comptroller and Auditor General/Accountant General of
each State as well as the Health Secretary incharge of Child Development in
each State."
62.
The
scheme shall provide support for foster care through the Sponsorship and Foster
Care Fund available with the District Child Protection Society. The Child
Welfare Committee either by itself or with the help of SAA, shall identify suitable
cases and order placement of the child in foster-care. Once the Child Welfare Committee
orders the placement of the child in foster care, a copy of the order shall be
marked to the DCPS for release of funds and to SAA for follow up and monitoring.
The SAA shall periodically report about the progress of the child of the Child Welfare
committee and DCPS.
63.
In
view of the directions suggested, the Child Welfare Committee must directly
come under the supervision of the District Judge/Judge of the High Court, it is
submitted that the above implementation must also be overseen by a
Court-monitored mechanism.
64.
There
must be an annual report by CARA. The said report must be scrutinized by a
Secretary incharge of family and social welfare. On 9th September, 2009, an office
memorandum was issued by the Ministry of Home Affairs.
65.
The
provisions of the Right of Children to Free and Compulsory Education Act, 2009 are
material. By virtue of Section 3 of the Act, every child of the age of 6-14
years shall have a right to free and compulsory education in a neighbourhood school
till completion of elementary education. The Central Government has notified the
Act in the Gazette on 27th August, 2009 and the Act has been brought into force
with effect from 1st April, 2010. It may also be noted that Chapter 6 of the
Act has special provisions for protection of the right of children. The National
Commission for Protection of Child Rights has already been constituted. The said
Commission now receives a statutory status by virtue of this Act. In view of
the performance of the present National Commission for Protection of Child Rights,
which has taken pioneering efforts, it is expected that on a close interface between
the National Commission for Protection of Child Rights, the State Governments and
the Ministry of Women and Child Development, positive outcomes should actually
be worked out.
66.
It
is, therefore, necessary that a coordinated effort must be made by the three agencies,
namely, the Commission, the Ministry and the State Governments. Learned Solicitor
General submitted that the recommendations be implemented by the concerned
agencies. In the State/Union Territory, the responsibility must be vast either on
the Chief Secretary or a Secretary Incharge of Children, Women and Family Welfare.
It would be open to the State Government in appropriate cases to nominate a special
officer for the said purpose not lower than the rank of a Secretary to the
State Government. Each State must issue a circular effectively indicating how the
recommendations will be implemented. We accept the submissions of the learned
Solicitor General and direct that the said circular shall be issued within 4
weeks from today and a compliance report be filed by the Chief Secretary of
each State to this Court.
67.
From
the above comprehensive submissions made by the learned Solicitor General it is
abundantly clear that the Government of India is fully aware about the problems
of children working in various places particularly in circuses. It may be
pertinent to mention that the right of children to free and compulsory education
has been made a fundamental right under Article 21A of the Constitution Now
every child of the age of 6 to 14 years has right to have free education in neighbourhood
school till elementary education.
68.
We
have carefully mentioned comprehensive submissions and suggestions given by the
learned Solicitor General and others. We plan to deal with the problem of
children's exploitation systematically. In this order we are limiting our directions
regarding children working in the Indian Circuses. Consequently, we direct:
i.
In
order to implement the fundamental right of the children under Article 21A it is
imperative that the Central Government must issue suitable notifications prohibiting
the employment of children in circuses within two months from today.
ii.
The
respondents are directed to conduct simultaneous raids in all the circuses to liberate
the children and check the violation of fundamental rights of the children. The
rescued children be kept in the Care and Protective Homes till they attain the
age of 18 years.
iii.
The
respondents are also directed to 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.
iv.
The
respondents are directed to frame proper scheme of rehabilitation of rescued
children from circuses.
v.
We
direct the Secretary of Ministry of Human Resources Development, Department of Women
and Child Development to file a comprehensive affidavit of compliance within
ten weeks.
69.
This
petition is directed to be listed for further directions on 19th July, 2011.
............................................J.
(DALVEER BHANDARI)
...........................................J.
(A.K. PATNAIK)
New
Delhi;
April
18, 2011
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