BACHPAN BACHAO ANDOLAN Vs UNION OF INDIA .
Bench: DALVEER BHANDARI,A.K. PATNAIK, , ,
Case number: W.P.(C) No.-000051-000051 / 2006
Diary number: 899 / 2006
Advocates: JYOTI MENDIRATTA Vs
MOHANPRASAD MEHARIA
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (C) No.51 OF 2006
Bachpan Bachao Andolan … Petitioner
Versus
Union of India & Others … Respondents
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.
2
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”.
3
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
4
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)
5
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.
6
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 (2001) 6
SCC 84 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.
7
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
8
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
9
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.
10
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
11
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,
12
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
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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
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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.
15
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
16
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.
5. Existing labour laws and legitimacy of
contracts of employment for children.
6. 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.
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19. The petitioner has filed the petition with the following
prayers:
1. 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;
2. 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;
3. 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;
4. 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.
5. 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;
18
6. 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:
1. 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
19
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.
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:-
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“ ….. 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
21
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.
6. 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.
7. Trafficking can also be for illegal activities such as:-
a. Begging;
22
b. Organ trade;
c. Drug peddling and smuggling;
8. Trafficking can be for sexual exploitation, i.e.
a. Forced prostitution;
b. Socially and religiously sanctified forms of prostitution;
c. Sex tourism;
d. Pornography;
9. Child trafficking can be to aid entertainment in
sports:-
a. Circus/dance troupes;
b. Camel jockeying;
10.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;
23
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;
d. 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;
f. Trafficking is an organized crime which could have multiple partners including syndicates.
11.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.
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:
24
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;
vi. 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
25
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.
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
26
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
27
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
28
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
29
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.
30
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.
35. It is submitted that the report dealt with cross border
trafficking in the following way:-
31
“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
32
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
33
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.
34
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;
35
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;
36
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
37
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
38
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
39
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.
40
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
41
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
42
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
43
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,
44
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
45
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.
46
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
47
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
48
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
49
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;
50
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;
vii) 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,
51
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;
52
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;
53
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;
xii) Serious services and infrastructure gaps leading
to few adoptions;
xiii) Cumbersome and time consuming adoption
services;
xiv) Lack of rehabilitation services for old children not
adopted through regular adoption processes;
xv) 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.
54
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:
55
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;
56
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:
57
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
58
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
59
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
60
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
61
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,
62
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
63