Final Videh Seminar

Offences Against Child
pg. 1
Assignment on Seminar - I

CHAPTER - I
INTRODUCTION
If we are to teach real peace in this world, and if we are to carry on a real war against war, we
shall have to begin with the children.
-Mohandas Karamchand Gandhi
Since ages, children have been victimized by one abuse or the other. It is not wrong to say that
they are a neglected lot. Throughout the history of our society, Children have been bought sold,
enslaved, exploited and killed. They have been abandoned severely beaten and physically
abused. In fact, the more we go in history we find that the lot of childrens had been hushes, and
crueler. Poverty and man situation have specially led to killing of children. 1 Since recent crimes
even as Delhi convulses over its unending tale of shame and horror, a National Crime Records
Bureau (NCRB) report shows that crime against women and children is in fact a national plague,
by no means limited to its capital alone. The victimization starts before the birth of a child itself.
For instance, foeticide, gender determination of foetus and causing miscarriage, it is determines
as a female, then the practice of infanticide or the willful killing of new born babies was widely
accepted among ancient and prehistoric people as a legitimate means of dealing with unwanted
children the same has taken the shape of foeticide with the advent on latest scientific and
technological instruments.
Sexual exploitation is another abuse, which children have faced over the centuries. Out of last
adults would modest them to their appeasement. Poverty and illiteracy has played a great role in
facing children to be exploited in order to earn their meal, a day. Childrens have been used as
slaves and bonded laborers in all societies.2 In India, the children coming from the lower strata of
society served the mighty and wealthy. They served, served and died. Although the times have
changed and the miseries of children have been reduced with the help of passage and
implementation of certain laws yet their lot as a whole has not improved much. The National
Crime Records Bureau of India, indicates rape cases against children in India have increased by
1 Paranjape P.V, Criminology and Penology (2006).
2 Sharma R.N, Criminology and penology, Surjeet publication, New Delhi (2008).
pg. 2

20 percent in 2012 over 2011.The year on increase registered in 2011 over 2010 was even higher
at 29.68 percent.3 However the consequences of crimes against children increasing in the recent
scenario, it is consider to be challenge to law enforcement, how to combat over such cases in
order to make prevention. Law enforcement should plan the preventive measures.
CHAPTER II
WHO IS CHILD?
Defining what age a person is or ceases to be a child is a constant debate in the India. The Census
of India considers children to be any person below the age of 14, as do most government
programmes. Biologically childhood is the stage between infancy and adulthood. According to
the UNCRC 'a child means every human being below the age of eighteen years unless, under the
law applicable to the child, majority is attained earlier'. This definition of child allows for
individual countries to determine according to the own discretion the age limits of a child in their
own laws. But in India various laws related to children define children in different age limits.
The Indian Penal Code, 1860 finds that no child below the age of seven may be held criminally
responsible for an action (Sec 82 IPC). In case of mental disability or inability to understand the
consequences of one's actions the criminal responsibility age is raised to twelve years (Sec 83
IPC). A girl must be of at least sixteen years in order to give sexual consent, unless she is
married, in which case the prescribed age is no less that fifteen. With regard to protection against
kidnapping, abduction and related offenses the given age is sixteen for boys and eighteen for
girls.
According to Article 21(a) of the Indian Constitution all children between the ages of six to
fourteen should be provided with free and compulsory education. Article 45 states that the state
should provide early childhood care and education to all children below the age of six. Lastly
Article 51(k) states the parents/guardians of the children between the ages of six and fourteen
should provide them with opportunities for education.
3 Crime in India report, National crimes records bureau, Ministry of Home affairs, New Delhi (2012).
pg. 3

The Child Labour (Prohibition and Regulation) Act, 1986 defines a child as a person who has not
completed fourteen years of age. The Factories Act, 1948 and Plantation Labour Act 1951 states
that a child is one that has not completed fifteen years of age and an adolescent is one who has
completed fifteen years of age but has not completed eighteen years of age. According to the
Factories Act adolescents are allowed to work in factories as long as they are deemed medically
fit but may not for more than four and half hours a day. The Motor Transport Workers Act 1961,
and The Beedi And Cigar Workers (Conditions Of Employment) Act 1966, both define a child as
a person who has not completed fourteen years of age. The Merchant Shipping Act, 1958 and
Apprentices Act, 1961 don't define a child, but in provisions of the act state that a child below
fourteen is not permitted to work in occupations of the act. The Mines Act, 1952 is the only
labour related act that defines adult as person who has completed eighteen years of age (hence a
child is a person who has not completed eighteen years of age).
The Prohibition of Child Marriage Act, 2006 states that a male has not reached majority until he
is twenty-one years of age and a female has not reached majority until she is eighteen years of
age. The Indian Majority Act, 1875 was enacted to create a blanket definition of a minor for such
acts as the Guardians and Wards Act of 1890. Under the Indian Majority Act, 1875 a person has
not attainted majority until he or she is of eighteen years of age. This definition of a minor also
stands for both the Hindu Minority and Guardianship Act, 1956 and the Hindu Adoption and
Maintenance Act, 1956. Muslim, Christian and Zoroastrian personal law also upholds eighteen as
the age of majority. The first Juvenile Justice Act, 1986 defined a boy child as below sixteen
years of age and a girl child as below eighteen years of age. The Juvenile Justice (Care and
Protection of Children) Act, 2000 has changed the definition of child to any person who has not
completed eighteen years of age.
Because of its umbrella clauses and because it is the latest law to be enacted regarding child
rights and protection, many are of the opinion that the definition of child found in the Juvenile
Justice Act, 2000 should be considered the legal definition for a child in all matters.
pg. 4
CHAPTER - III
IMPACT OF OFFENCES AGAINST CHILDREN ON SOCIETY
Children are so innocent in nature; this innocence can be misused by others. Especially, when
offences take place it will be shameful, and society hates it. There is threat in the mind set of
society members, which impacts on parents psychologically as well as social conditions. Because
in country like India, normative structure like socialization where parental conditions play vital
role. People will suffer by the crimes it will also destroy the social conditions in label ling
perspective. Government as implemented various policies and laws in order to protect children
by assuring them some rights, even united nation declaration on children rights becomes
questionable if increasing rate of crime exceeds further.
Major forms of offenses against children in India:
Sexual offences: protection of children from sexual offences act, 2012 deals with sexual offences
against children in India, earlier it was dealt with rape section 375 of Indian penal code.
There were 8541 cases registered 2012, as per the national crimes records bureau of India
statistics.4
Rapes, sexual assaults, sexual harassments, are common major issues, in the recent development.
Ministry of law and justice, India, passed The protection of children from sexual offences
acts in order to protect childrens from sexual offences. Also The national policy for
children-2013 as been made to deal with immoral trafficking of children and their welfare.5
4 National Crimes Records bureau report (2012).
pg. 5

Child trafficking: it is also a major problem in India that, selling of girls and buying of girls,
procuration of minor girls, kidnapping are the major crimes classified. Selling of girls
reported 108 cases during the year of 2012, whereas buying of girls are 8 cases. 6 And
procuration of minor girls is 809 cases reported. Immoral traffic prevention act 1986 deals
with the problems as a special law in India. Indian penal code section 372 also deals with
selling girls.7
Child marriage: child marriage is also social problem in India, law enforcement enacted
prohibition of child marriage act -2006.8
Child labor : there are two effective laws were passed in order to prevent child labor, bonded
labor system (abolishment) act 1976, and child labor act 2006. And also child labor
(prevention and regulation act) 1986.9
Murder: Indian penal code10 section 302.in 2012, the rate of murder of children were 1597
reported as per the national crimes record bureau, India.
Foeticide, which means foetus are punishable under section 315 and 316. In 2012, the total
foeticide cases were 210 registered. These are punishable under the section of 315 and 316 of
Indian penal code.
Kidnapping is another major crime, kidnapping and exporting of children may penalized under
section 360 of Indian penal code .Kidnapping and demanding ransom is punishable under
364A of India penal code.11
5 The gazette of India Ministry of law and Justice, New Delhi (2012).
6 Puja Changoiwala, Mumbai stands second in crime against children in India, Hindustan times, Mumbai
(2004).
7 Crime in India, A Statistical Appraisal, Ministry of statistics and Program Implementation Government
of India (2012).
8 Neha Madaan, Crime against Children on the rise, Times of India, Aug 21, (2013).
9 Bharani N., Domestic violence and Human rights, Int,Res.J.Social Sci., 2(9), 7-10 (2013).
10 Ratan lal and Dhiraj lal, Criminal Procedure Code,15th Edition (2000).
11 Ratan lal and Dhiraj lal, Indian penal Code, 30th Edition, (2008).
pg. 6

These are all the major social concern area that affecting the society, and social dignity of
children, also they are the major social problems which society members, law enforcement
agencies are rethinking to prevent. Nowadays there is question how to take care of our children,
and there is need of re-thinking in order to make policies, laws, and to create some deterrence
among society members and to punish the culprits. In many of the cases offenders are well
known to victims. Police department and other law enforcements agencies are having huge
burden on their shoulders in order to prevent. Criminal justice system provide lot of support to
the victims, they can have fast proceedings of trail, special trail, in order to protect the children
dignity and their future. Indian society fully feels shame on the national development in the field
of crime and its vulnerability. There should be community interference in order to fight against
offences against children.12
CHAPTER IV
OFFENCES AGAINST CHILD & IPC
Apart from the various acts concerning children, The Indian Penal Code (IPC) also has a list of
offences against children.
Crime against children punishable under the Indian penal code (IPC) are:
Murder (302 IPC)

Foeticides (Crime against a foetus) IPC Section 315 & 316
Infanticides (Crime against newborn child) (0 to 1 year) Section 315 IPC.
Abetment to suicide (abetment by other persons for commitment of suicide by children)
Section 305 IPC.

Exposure & abandonment (Crime against children by parents or others to expose or to leave
them with the intention of abandonment): Section 317 IPC.
There is no separate classification of offences against children. Generally, the offences
committed against children or the crimes in which children are the victims are considered as
12 Jan van Dijik, Crime prevention and Human Security: a United Nations Perspective (2004).
pg. 7

crime against children. Indian penal code and the various protective and preventive special and
local laws specifically mention the offences wherein children are victims. The age of child varies
as per the definition given in the concerned Acts and sections but age of child has been defined to
be below 18 years as per Juvenile Justice Act, 2000. Therefore an offence committed on a victim
under the age of 18 years is construed as crime against children.
The crime rate for crimes committed against children has been calculated using only children
population (upto 18 years of age) based on Ministry of health & family welfares mid-year
estimated children population, therefore the crime rate of reference year may not be comparable
with the crime rate of previous years.
The cases in which the children are victimised and abused can be categorised under two broad
sections:
1.) Crimes committed against children which are punishable under Indian penal code (IPC).
2.) Crimes committed against children which are punishable under special and local laws (SLL).
According to the sections 82 and 83 of the IPC a child who commits a crime and is below the age
of seven is not considered to have committed a crime. A child who is between the ages of seven
and twelve and is deemed to have immature understanding about the consequences of his/her
actions is also considered incapable of committing a crime.
Section 315 and 316 discusses the offence of foeticide and infanticide. If a person commits an act
with the intention of preventing the child from being born alive or an act that results in the death
of the child after birth, that person is committing foeticide/infanticide as long as they do not do it
in the interest of the mother's health or life. If a person does an act that amounts to culpable death
which results in the quick death of an unborn child, he will be charged with culpable homicide.
Section 305 states that it is a crime for any person to abet the suicide of a child, i.e. a person who
has not completed eighteen years of age.
Section 317 states that is it a crime against children, if their mother or father expose or leave a
child in a place with the intention of abandonment. This does not prevent the law from pursuing
further if the abandonment results in the death of the child. The parents would then be charged
with culpable homicide or murder.
There are a number of sections in the IPC that discuss kidnapping and abduction. Section 360
states that kidnapping from India is the defined as the conveyance of a person beyond the borders
of India without their consent. 361 states that if a male minor of not yet sixteen and female minor
pg. 8

of not yet eighteen is taken from their lawful guardians without their consent it is termed
kidnapping from lawful guardianship. Section 362 defines abduction as compelling, forcing or
deceitfully inducing a person from a place. Section 363-A states, it is a crime to kidnap or maim
a minor for the purpose or employment of begging. If a person if found employing a minor for
begging, and that person is not the legal guardian of the child, it is assumed that the child has
been kidnapped for the purpose of employment in begging. Section 364 states that any person
who kidnaps another for the purpose for murdering or disposing of in a way that will lead to
murder is punishable by law. Section 364-A defines ransom kidnapping as any person who
kidnaps another to threatens to harm or kill that person in an attempt to get the government, or
any other foreign or state organisation to do or not do any act. Section 365 discusses kidnapping
to secretly or wrongfully confine someone. Section 366 states it is a crime to force or compel or
abuse a woman to leave a place in order to force her to marry or seduce or illicit sexual
intercourse from her by the kidnapper or another person. 366A specially outlines such a crime
being committed against a minor girl who has not attained eighteen years of age. Section 367
states it is a crime to kidnap a person in order to cause them grievous hurt, place them in slavery,
or subject them to the unnatural lust of a person. Section 369 is a specific crime of kidnapping a
child under 10 years of age in order to steal from them.
Sexual offences against children are also covered in the IPC. Section 372 discusses the selling of
a child (below the age of eighteen) for the purpose of prostitution or to illicit intercourse with
any person, or knowing that it is likely that the child is being sold for such a purpose. Section
372 states it is a crime to buy a child for the purpose of prostitution or to illicit sex from any
person.
Section 376 discusses the offence of rape. Under this section a man who rapes his wife, who is
not below twelve years old is given a lesser punishment. The section also discusses special
circumstances of rape such as rape committed by a civil servant or police man, rape of a pregnant
woman, gang rape or rape of a child below the age of twelve.
CHAPTER V
pg. 9

CHILD SEXUAL ABUSE AND LAW
It is an undisputed fact that child sexual abuse in India is increasing at the alarming rate.
Children from the majority of the countrys population; they are pegged as the future of the
country. They carry with them hopes and dreams to achieve greatness. However, the stark reality
remains that fifty three percent of Indian children have been subject to some form of sexual
abuse.13
While tackling the numerous issues plaguing society, the safety and security of children have
been grossly side lined. The legislature has shown an extreme nonchalance towards taking any
step to protect the most vulnerable section of society. The inadequacy of punishment is one such
instance of legislative oversight and as a result, children have become victims of brutal instances
of sexual abuse. Years of legislative neglect have taken material form with growing instances of
sex tourism, pornography, child rape, child trafficking. This pressurized the Ministry of Women
and Child Development to expeditiously draft the offences from Children (Prevention) Bill, 2005
and lobby hard for its passage. In 2012, Parliament finally passed the Protection of Children
from Sexual Offences Act which has been hailed as a bold step towards the children of our
country.
PREVIOUS PROVISIONS
Indian children, who account for an overwhelming forty percent 14 of the entire population of the
country, have, until recently, been placed in a state of extreme vulnerability due to the
indifference of the legislature. The lack of legal framework protecting children has only
encouraged sexual predators. One of the problems is that under the Indian legal system the
definition of a child differs from the law to law. Irrespective of the various definitions however,
there lies a mandatory obligation of Centre and State to provide for and protect children. Article
45 of the Constitution specifies that the state shall endeavour to provide early childhood care and
13 Study Undertaken by the Ministry of women and Child Development on Child Abuse in collaboration
with UNICEF, Save the Child and Prayas NGO, (9 April 2007).
14 Government of India, Ministry of Home Affairs, Office of the Registrar General & Census
Commissioner, India, 2001 Census Data, Age Structure and Marital Status, available at
http://censusindia.gov.in/Census_And _You/age_structure_and_marital_status.aspx ( last visited 10 Oct,
2015).
pg. 10

education for all the children until they complete the age of six. 15 Its a state responsibility and it
is embed in the constitutional roots. The Indian penal code states that nothing is an offence done
by a child under seven years, and further, under twelve years, till he has attained sufficient
maturity of understanding as regards the nature of the Act and the consequences of his conduct
thereof.16 However, while pushing the perpetrators of rape, the cope defines the age of consent to
be below sixteen years.17 Furthermore, for purposes of protection against kidnapping, abduction
and related offences, a minor is considered to be under sixteen years age in the case of a male
and under eighteen years of age in the case of a female. Under the Child Labour prohibition and
Regulation Act, 1986, a child is a person who has not completed fourteen years of age. However,
the Age of Majority Act, 1875 along with several legislations 18 considers a minor to be a person
under eighteen years of age. It is pertinent to remember that India is a signatory to the United
Nations Convention where child is considered minor age less than eighteen years.
In spite of the strong mandate set forth by national and international laws for protecting the rights
of a child, the Indian legislature did not step up to fill in the inadequacies with stringent laws. A
gaping loophole can be seen in the Indian Penal Code where code is silent on child sex abuse.
The lack of legislative recognition of child sexual abuse as a criminal offence often forces
prosecutors to rely on generalized provisions which are not equipped to deal such abuse. In
attempt to criminalize sexual offences, the laws enacted for women, protecting them against
sexual offences, were extended to include children. However, this resulted in criminalizing
offences only against female children who were subjected to peno-vaginal intercourse under the
law.19 Sexual offences against male children along with other forms of sexual abuse including
exhibitionism, voyeurism, oral or anal intercourse and touching are left unpunished under the
15 Article 51, the Constitution of India, 1950.
16 Ss. 82 & 83, Indian Penal Code, 1860.
17 S. 376, Indian Penal Code, 1860.
18 S. 2(k)The Juvenile Justice (Care and Protection of Children) Act, 2000; See alsoS 2(b) The
Protection of Women from Domestic Violence Act, 2005.
pg. 11

law. The only gender neutral provision that is provided in the code is the controversial section on
unnatural offences.20 Even though it was not intended to prosecute child sex abuse, it has been
partially used to do so by recognising the possibility of sexual abuse of boys. While this section
is equipped to deal with sexual abuse that involve non-penile-vaginal penetration, its high bench
mark of the penetration leaves several forms of abuse like molestation and penetration with
objects unaddressed.
The first legislation for the protection of children against abuse came in the form of the Goa
Childrens Act of 2003. It adhered to the United Nations Conventions on the Rights of the Child.
The Act criminalized child abuse and meted out punishments for sexual assault and incest. 21 It
prohibits soliciting children for commercial exploitation in the form of pornography or
suggestive and obscene photographs.22 The act has an all-encompassing definition of
commercial sexual exploitation of children.23 In 2005, the definition of grave sexual assault in
the Act was amended24 to include acts such as causing children to pose for pornographic photos
etc. Lastly, it laid responsibility on the Airport authorities, border police, railways police, traffic
police and developers of movies and photos to report any inappropriate depiction of children in
print media or suspicion of trafficking.25 However, in spite of these legislations, several
perpetrators of paedophilic abuse have been acquitted due to lack of evidence. Similarly, the
children for protection of Child Rights Act, 2005 was a national legislation that put forth the
constitution of childrens courts in states and districts to ensure expeditious trial for offences
against children.26
21 Ss. 8 (1)-(3), Goa Childrens Act, 2003.

22 S. 8(15), Goa Childrens Act, 2003.
23 S. 2(jj, )Goa Childrens Act, 2003.
24 Goa Childrens (Amendment) Act of 2005.
25 S. 7(9),Goa Childrens Act, 2003.
pg. 12

NECESSITATE FOR SEPARATE LEGISLATION
There has been extensive debate on whether the Indian Penal Code should be amended to include
perpetrators or whether a separate law should be drawn up to specifically address the child sex
abuse. In the case of Sakshi v. Union of India,27 a step forward was taken to examine
shortcomings of the Indian Penal Code when dealing with the cases of this nature. However, the
Court did not adequately address the entire breadth of issues, thereby failing yet again to
effectively insulate children in India from sexual abuse. The Supreme Courts timely
acknowledgement of the prevalence of child sexual abuse in India and its alarming only
increases the necessity of creating and enforcing laws that protect children. In 2005, a bill
specifically protecting the rights of children against this menace was drawn up while drafting the
offences Against Children Bill. However, in 2007 the Ministry rejected the bill, stating that
there was no need for a separate legislation. The Ministry of Law simultaneously worked on the
draft of the Prevention of Offences against the Child bill, 2009, which sought to address all
offences against children, including sexual offences. However, after several delays and
complications in 2011, a specific bill for prevention of sexual abuse against children was drafted
comprehensively and was finally passed by the Rajya Sabha in 2011. This bill is now known as
the Protection of Children from Sexual offences Act, 2012.
CHAPTER VI
PROVISIONS OF THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT, 2012
This legislation is in response to the increasing instances of grave sexual offences against
children and low rates of conviction for the same. This is the first legislation in the country that
deals specifically with offences against children and clearly defines them. It includes within
purview the abuse of boys as well as girls.28 The penalties for offences under this Act have been
26 S. 2Child Rights Act, 2005.
27 [2004] 3 LRI 242.
28 S. 2(1) (d), The Protection of Children from Sexual Offences Act, 2012.
pg. 13

classified as per the gravity of the offence, ranging from simple to rigorous imprisonment of
several years. The Act also penalizes the attempt to commit an offence and the abetment of an
offence.29 The Act has made a distinction between sexual assault and aggravated sexual assault,
the penalty for the latter more stringent. An offence is treated as aggravated when it is
committed by a person who holds a position of trust or authority in the eyes of the child, such as
a member of security forces, police officer, public servant, etc.
The burden of proof for offences such as Penetrative Sexual Assault, Aggravated Penetrative
Sexual Assault, Sexual Assault and Aggravated Sexual Assault, has been shifted on the
accused.30 This has been done keeping in mind the greater vulnerability of children and the
heinous nature of the offences.31 Concurrently, the Act also provides for punishment for making a
false complaint or giving false information with malicious intent.32 However, the degree of
punishment has been kept relatively low (six months) to encourage reportage of crimes. The Act
specifies the establishment of Special Courts for trial of the listed offences, keeping the interest
of the child paramount at every stage of the process by incorporating child-friendly procedures
for reporting, recording of evidence, investigation and trial of offences.33
ANALYSIS OF THE ACT
The Act has the potential to instil hope in many child victims of abuse who have been denied
justice due to the loose ends in penal laws. The Act is progressive in its approach. It is genderneutral and lays down stringent punishments for a range of sexual offences. It has introduced
several measures to prevent the re-victimization of children at every step of the judicial progress.
However, there are several provisions in the Act that continue to serve as causes for concern.
29 Ss.16,17&18, The Protection of Children from Sexual Offences Act, 2012.
30 Ministry of Women and Child Development, The Protection of Children from Sexual Offences Act of
2012, available at http://pib.nic.in/newsite/erelease.aspx?relid=84409 (last Visited 29 Oct, 2013)
31 Supra note 29.
32 S 22, The Protection of Children from Sexual Offences Act, 2012.
33 The Protection of Children from Sexual Offences Act of 2012 Chapter 7.
pg. 14

MAJOR LACUNAS
No preventive measures
Overall, the Act does a fine job in dealing with cases of child sexual abuse. However, nowhere
does the Act mention provisions to prevent abuse.34 The Act only lays down measures to be taken
after the child has suffered sexual abuse. It should certainly include provisions for prevention as
well, since punishment should never be sole deterrent.35 In cases of child abuse, prevention is
certainly the best cure.
Possible preventive measures can be the setting up of a website which has details of first time
offenders.36 This website will ensure that such deviants are not hired by any school, universities,
hospitals and places where children traditionally assemble in large numbers.37
Age of consent
Raising the age of consent for sex from 16 to 18 is definitely a step back. A study conducted by
the International Institute for Population Studies and Population Council in 2010 reveals that
instance of pre-marital relationships amongst those above 16 years is higher than ever
before.38 Another lacuna born from such an unreasonable provisions is that sexual intercourse
between two consenting teenagers, for example a 17 year old girl and a 19 year old boy, will
34Jose Parapully, Questions of Protection, available at
http://www.telegraphindia.com/1120814/jsp/opinion/story_15851.jsp#.UIazp2CpSnM (last visited 20
Oct, 2015).
35 Supra note 33.
36Pinky Virani, Child Sex Abuse and the Law, available at
htpp://www.openthemagazine.com/article/nation/child-sex-abuse-and-the-law (last visited 15 Oct, 2015).
37 Supra note 35.
38 Geeta Ramasehan, Law and the Age of Innocence, available athttp://www.thehindu.com/opinion/oped/article3543940.ece (last visited 18 Oct, 2015).
pg. 15

result in the boy being charged with the offence of child sexual abuse even if the age difference
between both of them is negligible and both the teenagers have engaged in safe, consensual sex.
Mandatory reporting
The Act also calls for mandatory reporting to designed authorities by anyone who apprehends
that an offence may be committed.39 The failure to report the same is an offence. This provision
is quite flawed. This will encourage moral policing and even consensual intimate behavior may
lead to complaints by ill-disposed and disapproving family members and others, leading to the
harassment of young adults.40
No provisions for marital rape
The Act is also silent on the issue of marital rape. 41 Therefore, there will be no relief if the wife is
above 15 years of age, although she will come within the definition of a child under the
Act.42 This is void that should be addressed.
No period of limitation
There is no period of limitation mentioned in the Act. 43 This means that even an act that was
committed 50 or 60 years ago can be reported. This aspect of the Act should be looked into.
Protection from adverse consequences
A vital issue vis-a-vis the reporting of abuse that is absent from the Act is the Protection of those
who report the abuse.44 There is no provision for the protection of the person who has reported
such abuse. Obligation to report, without providing protection for the same, makes little sense.
39 The Protection of Children from Sexual Offences Act of 2012, Chapter 5.
40 Flavia Agnes, Consent and Controversy, available at http://m.indianexpress .com/news/consent-andcontroversy/948277/ (last visited 20 Oct, 2015).
41 Supra note 39.
42 Id.
43 Arun Mal & Pallavi Nautiyal, Towards Protection of Children against Sexual Abuse: No Childs Play,
3 NUJS L.REV 90 (2010).
pg. 16
CHAPTER - VII
CHILD TRAFFICKING
Child trafficking is a global phenomenon and is not limited to any geographical region or
country. It is a gross violation of the human rights and fundamental freedoms of children. It
infringes upon the childs physical and mental integrity, which are central to the experience of
human dignity and, poses a significant threat to the childs life. Child trafficking is inherently a
dynamic, hidden phenomenon that is difficult to identify.45 Children boys and girls have been
exposed to unprecedented vulnerabilities. Nations are attempting to combat this trade in human
misery through legislative, executive, judicial and social action. Children and their families are
often lured by the promise of better employment and a more prosperous life far from their
homes. Others are kidnapped and sold. Trafficking violates a childs right to grow up in a family
environment and exposes him or her to a range of dangers, including violence and sexual abuse.
In India too, over the last decade, the volume of human trafficking has increased though the
exact numbers are not known, it is one of the most lucrative criminal trades, next to arms and
drug smuggling undertaken by highly organized criminals.46
The trafficking of children, defined as the recruitment, transport, transfer, harbouring or receipt
of a person under the age of 18 for the purpose of exploitation (including prostitution or other
forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery,
servitude or the removal of organs),47 is widely recognized as presenting a threat of global
44 Supra note 33.
45 Government of Bihar, Department of Social Welfare, Standard Operating Procedure: Raid & Rescue
of Trafficked Victims,
http://socialwelfare.icdsbih.gov.in/upload/LatestUpdates/LatestUpdates_135356207344.pdf.
46 Dr. (Mrs.) Intezar Khan, Child Trafficking In India: A Concern,
http://jmi.ac.in/upload/publication/Child_Trafficking_in_India.pdf.
47 Protocol to Prevent Suppress and Punish, Suppress and Punish Trafficking in Persons, Especially
Women and Children.
pg. 17

proportions. While precise statistics concerning the scope of the problem do not exist, it is
estimated that some 1.2 million children are trafficked each year worldwide.48
The causes of global trafficking are varied and complex, but notably include poverty, lack of
opportunities, the economic gains to be made through the exploitation of children, entrenched
gender discrimination and discriminatory cultural practices. Human trafficking, over 20 percent
of which is trafficking in children, is believed to be a multi-billion dollar industry. 49 Trafficked
children have many faces. They are, to take only a few examples, prostitutes; mail order brides;
beggars; child soldiers; and labourers in homes, on plantations and in mines. Increasingly, they
are being recruited to aid in the manufacture of drugs and weapons. Children who are susceptible
to being trafficked are those who are subject to pervasive discrimination, including minorities,
stateless children, refugees and girls.50 A report produced by the United Nations Population Fund
provides the following assessment: (a)s women and girls are, generally, less valued they are more
often seen and used as commodities they are easy targets for traffickers.51
Where children lack stable home environments and financial security, and where the
opportunities available to them are slim, trafficking tends to flourish. Rates of trafficking are
frequently high in areas where there are limited job possibilities; where children have minimal
education and vocational skills; and where children are living without parents or primary
48 UNICEF, End Child Trafficking, http://www.unicef.org.uk/campaigns/campaign_detail.asp?
campaign=21
49 ECPAT International, Their Protection is in Our Hands: the State of Global Child Trafficking for
Sexual Purposes (2009), retrieved from
http://resources.ecpat.net/EI/Publications/Trafficking/Full_Report_Global_Child_Trafficking_for_Sexual
_Purposes.pdf.
50 Trafficking of Children for Prostitution and the UNICEF Response,http://www.asiasociety.org/policypolitics/human-rights/trafficking-children-prostitution-and-unicef-response
51 UNFPA, Trafficking in Women, Girls and Boys: Key Issues for Population and Development
Programmes, (2002); cited at Rebecca Everly, Preventing and Combating the Trafficking of Girls in India
Using Legal Empowerment Strategies, A Rights Awareness and Legal Assistance Program in Four
Districts of West Bengal, June 2010 March
2011,http://www.idlo.int/Publications/FinalReportGirlsProject.pdf.
pg. 18

caregivers (including in orphanages).52 Porous borders and the presence of natural
disasters/conflicts further enhance vulnerability to trafficking, as does forced migration. 53
Children without birth registration or identity documents also face a heightened risk of
trafficking. Victims of trafficking are frequently exposed to physical and sexual abuse, dangerous
work environments, and denied access to education. They are also typically placed in situations
of extreme dependence and conditioned to believe that they have no alternative life options.54
UNICEF remarks that:
Traffickers exploit the fact that children have a less-developed capacity than adults to assess
risk, to articulate and voice their worries (about being exposed to danger), to distinguish right
from wrong (when being required to commit a crime) and to look after themselves (including
taking action to defend themselves from harm).55
Unsurprisingly, trafficking frequently has devastating long-term effects on
the mental and physical health of its victims, and a tendency to perpetuate
poverty and marginalization.
DEFINITION
52 UNICEF and Inter-Parliamentary Union, Combating Child Trafficking: A Handbook for
Parliamentarians, no. 9 (2005); cited at Rebecca Everly, Preventing and Combating the Trafficking of
Girls in India Using Legal Empowerment Strategies, A Rights Awareness and Legal Assistance Program
in Four Districts of West Bengal, June 2010 March 2011,
http://www.idlo.int/Publications/FinalReportGirlsProject.pdf.
53 Save the Children, Child
Trafficking,http://www.savethechildren.in/india/key_sectors/child_trafficking.html.
54 PLAN, Because I am a Girl: Trafficking and Sexual Exploitation, http://www.planuk.org/becauseiamagirl/thefacts/growingup/trafficking/
55 UNICEF, Reference Guide on Protecting the Rights of Child Victims of Trafficking in Europe (2006)
(hereinafter Reference Guide) 27-28; cited at Rebecca Everly, Preventing and Combating the Trafficking
of Girls in India Using Legal Empowerment Strategies, A Rights Awareness and Legal Assistance
Program in Four Districts of West Bengal, June 2010 March
pg. 19

The Protocol to Prevent, Suppress and Punish Trafficking in Persons,
Especially
Women
and
Children,
supplementing
the
United
Nations
Convention against Transnational Organized Crime (informally known as the

Palermo Protocol) is the first legal instrument to provide an internationally
agreed definition of trafficking in human beings and child trafficking. 56
The Palermo Protocol was adopted in 2000 and entered into force in 2003. With regard to child
trafficking, it is clear that no violence, deception or coercion is required for a person under 18 to
be considered a victim of trafficking; it is sufficient that he or she has been recruited and moved
for the purpose of exploitation. Article 3 (c) 57 of the Protocol states that the recruitment,
transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be
considered trafficking in persons even if this does not involve any of the means set forth in
sub-paragraph (a) of this article. Exploitation includes prostitution and other forms of sexual
exploitation, harmful work, being forced to work, slavery, forcing people to do illegal or criminal
things and the removal of organs. The definition applies to all people, men, women and children.
But when it comes to children, any kind of recruitment, transportation, moving them around,
buying or selling them or keeping them for the purpose of exploitation will be considered
trafficking no matter how it is done.
This definition implies an understanding that a child cannot consent to being trafficked, and that
a childs consent is not recognized as a justification for any form of child exploitation or abuse.
Also, the above definition clearly spells out that trafficking covers not only the transportation of
a person from one place to another, but also their recruitment and receipt so that anyone involved
in the movement of another person for their exploitation is part of the trafficking process. It
further articulates that trafficking is not limited to sexual exploitation only for it could occur also
for forced labour and other slavery like practices. This means that people who migrate for work
in agriculture, construction or domestic work, but are deceived or coerced into working in
conditions they do not agree to, are also defined as trafficked people.58
56 XII
57 XIII
pg. 20

The definition of child trafficking in the Palermo Protocol is complex and can be difficult to
apply in practice. It may be challenging to differentiate between a child victim of trafficking and
a child who has experienced other forms of exploitation or abuse. This is especially the case
when exploitation and abuse take place in the context of movement or migration and when the
available information on a childs situation and background is incomplete. In the absence of a
uniform system for identifying children who are survivors of various forms of exploitation and
abuse, trafficked children are often misidentified.59 They may be identified as migrant children,
immigrants with irregular status, victims of sexual exploitation and abuse, juvenile delinquents
or children living on the street. At the same time, not all children identified as having been
trafficked have actually had experiences that fall under the international definition of child
trafficking. Therefore, the way in which cases are identified and recorded in national statistics
may not reflect the full scope of child trafficking.
Even children may be hesitant to be identified as trafficking victims. They may fear threats from
traffickers against themselves or their family members, social stigma or legal consequences.
Children may have concerns that once identified as having been trafficked, they will not be able
to make money, pay off their debts or live up to the expectations their families have of them.60
All those who contribute to the movement of the child and know that what they are doing is
likely to lead to the exploitation of the child are traffickers. In this way, recruiters, intermediaries,
document providers, corrupt officials, employers, exploiters and transporters are traffickers.61
59 South Asia In Action: Preventing And Responding To Child Trafficking: Analysis Of Anti-Trafficking
Initiatives In The Region, August 2009, ISBN: 978-88-89129-88-3, retrieved from http://www.unicefirc.org/publications/pdf/ii_ct_southasia_analysis.pdf.
60 Ibid.
61 Bianca Daw, Child Trafficking: Problems and
Solutions,http://www.academia.edu/2065674/Child_Trafficking_Problems_and_Solutions.
pg. 21

CAUSES OF CHILD TRAFFICKING
The problem of child trafficking is the result of a constellation of factors, including widespread
poverty, lack of livelihood opportunities, entrenched gender discrimination, displacement, the
demand for young girls, the upheaval associated with natural disasters/conflict in parts of the
country and the profits to be made. In some cases, socio-cultural and religious factors have an
impact on child trafficking, as where religious figures have made use of their position to traffic
girls for prostitution.62 Additional risk factors include, for example, parent illiteracy, illness or
death of one of the main family breadwinners, unemployment, early school drop-out of the
concerned children, absence of workplace inspection or policing, and a specific demand for child
labour.63 Frequently, trafficking is accomplished through the deception of girls and their families.
In many villages in West Bengal it is reported that traffickers have obtained access to girls by
pretending to be grooms without dowry demands.64 In other cases, trafficking has been facilitated
by relatives or friends of the victims, as well as teachers and placement agencies. 65 The
traffickers also exploit lack of political will by governments to tackle trafficking and its root
62 Save the Children, cited at Rebecca Everly, Preventing and Combating the Trafficking of Girls in
India Using Legal Empowerment Strategies, A Rights Awareness and Legal Assistance Program in Four
Districts of West Bengal, June 2010 March
63 S. K. Roy, Child trafficking in India: Realities and realization, IUAES2013, PANELMMM02, http://www.mecon.nomadit.co.uk/pub/conference_epaper_download.php5?
PaperID=11283&MIMEType=application/pdf.
64 A. Das, Child Marriages, trafficking on the Rise in West Bengal, The Hindu, 19 July
2007,http://www.hindu.com/2007/07/19/stories/2007071956291300.htm.
65 S. Madhok, Trafficking Women for Domestic Work, Infochange
Women,http://infochangeindia.org/200803277013/Women/Features/Trafficking-women-for-domesticwork.html
pg. 22

causes.66 Moreover, girls who have been exploited are also commonly used to lure girls from
source areas.67
Also, increasing breakdown of social structures (which results in a loss of family and community
support networks, making families, particularly women and children, increasingly vulnerable to
traffickers demands and threats); Globalization and economic disparities between countries, and
porous borders facilitates easy movement of people and large-scale illegal migration of women
and children into India from the neighboring countries and this illegal migration are exploited by
the traffickers to traffic women and children into exploitative situations, including prostitution
and labour.68
THE PROBLEM OF CHILD TRAFFICKING IN INDIA
Although it is often difficult to obtain comprehensive data on the extent of human trafficking in
India, it is generally accepted that India is a source, destination, and transit country for
trafficking of persons, including young girls.69 A 2006 study found that 378 of the 593 districts
were affected by human trafficking.70 It is estimated that ninety percent of trafficking in the
66 Jeanine Redlinger, Child Trafficking And Sexual Exploitation, UI Center for Human Rights Child
Labor Research Initiative, OCTOBER 2004,
http://www.continuetolearn.uiowa.edu/laborctr/child_labor/materials/pdf/modules/child_trafficking.pdf.
67 Rebecca Everly, Preventing and Combating the Trafficking of Girls in India Using Legal
Empowerment Strategies, A Rights Awareness and Legal Assistance Program in Four Districts of West
Bengal, June 2010 March 2011,http://www.idlo.int/Publications/FinalReportGirlsProject.pdf.
68 S K ROY, Child trafficking in India: Realities and realization, IUAES2013, PANELMMM02, http://www.mecon.nomadit.co.uk/pub/conference_epaper_download.php5?
PaperID=11283&MIMEType=application/pdf.
69 United States Department of State, Trafficking in Persons Report 2010 India (2010); cited at
Rebecca Everly, Preventing and Combating the Trafficking of Girls in India Using Legal Empowerment
Strategies, A Rights Awareness and Legal Assistance Program in Four Districts of West Bengal, June
2010 March 2011,http://www.idlo.int/Publications/FinalReportGirlsProject.pdf
70 The Times of India, India is Transit Hub for Human Trafficking, 22 June 2006; cited at Rebecca
Everly, Preventing and Combating the Trafficking of Girls in India Using Legal Empowerment
pg. 23

country is internal, with victims of trafficking mostly being used for forced labour. Child victims
of trafficking in India are exploited in many ways including factory and agricultural workers,
domestic servants and beggars.71 Girls, in particular, are vulnerable to trafficking for the purpose
of forced marriage and commercial sexual exploitation.
The porous borders in the region are often cited as a contributing factor to cross- border
trafficking, including the trafficking of girls from Nepal and Bangladesh to India. ECPAT
International estimates that 150,000 women and children are trafficked from South Asia
annually, most from, through or to India.72 The combined estimates for Nepal and Bangladesh
range from 500 to 10,000 girls being trafficked to India annually; another estimate puts the figure
at more than 200,000 over a period of seven years. 73 At present, there are no laws governing the
repatriation of trafficking victims from India to Bangladesh and Nepal and concerned
organizations have sought to assist girls in reaching their homes by liaising with partner
organizations in these countries.74
Crossing the border between Bangladesh and West Bengal is a daily routine for many []. A
well-organized bribe system also helps people to cross over the flat terrain. Further, a multiple
passport system [] facilitates easy entry of Bangladeshi girls into Kolkata brothels and a close
nexus exists between traffickers and border village communities. After being sorted and
Strategies, A Rights Awareness and Legal Assistance Program in Four Districts of West Bengal, June
2010 March 2011,http://www.idlo.int/Publications/FinalReportGirlsProject.pdf
71 Trafficking in Persons Report 2010 India; cited at Rebecca Everly, Preventing and Combating the
Trafficking of Girls in India Using Legal Empowerment Strategies, A Rights Awareness and Legal
Assistance Program in Four Districts of West Bengal, June 2010 March 2011.
72 ECPAT International, Stop Sex Trafficking of Children & Young
People,http://ecpat.net/EI/Publications/Trafficking/Factsheet_India.pdf.
73 S. Sen and P.M. Nair, A Report on Trafficking in Women and Children in India 2002-2003, Vol. 1,
Institute of Social Sciences, National Human Rights Commission and UNIFEM
(2004),http://nhrc.nic.in/Documents/ReportonTrafficking.pdf.
74 Ibid.
pg. 24

graded, [girls] may be sold to pimps or sent to the Middle East, Kolkata, Bashirghat, Delhi,
Mumbai or Agra. -Sen and P.M. Nair, A Report on Trafficking in Women and Children in India
2002-2003, Volume 1, Institute of Social Sciences, National Human Rights Commission and
UNIFEM (2004), 11-12.75
INTERNATIONAL INSTRUMENTS SIGNED BY GOVERNMENT OF INDIA
The Government of India signed the Trafficking Protocol on 12 December 2002. This is a huge
step forward in advancing the human rights of trafficked people as it not only prevents and
protects the victims of trafficking but also punishes the traffickers. It has also ratified the 1949
Convention for the Suppression of the Traffic of Persons and of the Exploitation of the
Prostitution of Others, the Convention on the Elimination of All Forms of Discrimination Against
Women (CEDAW) and the Convention on the Rights of the Child (CRC), all of which have been
ratified by the Government of India. The Government of India has also ratified the two Optional
Protocols to the Convention on the Rights of the Child (i) on the Involvement of Children in
Armed Conflicts and (ii) on the Sale of Children, Child Prostitution and Child Pornography. The
Convention on Preventing and Combating Trafficking in Women and Children for Prostitution
devised by the South Asian Association for Regional Cooperation (SAARC) in 2002, which has
also defined the term trafficking, has also been ratified by the Government of India.76
ANTI-TRAFFICKING LAWS IN INDIA
The Indian Constitution explicitly prohibits trafficking of human beings and forced labour, and
makes both offences punishable. Article 23(1) of Indian Constitution provides that: traffic in
human beings [] and forced labour are prohibited and any contravention of this provision shall
be an offence punishable in accordance with law.77 Moreover, the Directive Principles of State
75 S. Sen and P.M. Nair, A Report on Trafficking in Women and Children in India 2002-2003, Vol. 1,
Institute of Social Sciences, National Human Rights Commission and UNIFEM (2004).
http://socialwelfare.icdsbih.gov.in/upload/LatestUpdates/LatestUpdates_135356207344.pdf
77 Article 24 further prohibits employment of children below 14 years of age in factories, mines or other
hazardous employment.
pg. 25

Policy articulated in the Constitution are also significant, Article 39(e) provides that the health
and strength of workers, men and women, and the tender age of children are not abused and
that citizens are not forced by economic necessity to enter avocations unsuited to their age or
strength. Also, Article 39(f) imposes a duty on the State to direct its policy towards ensuring that
children are given opportunities and facilities to develop in a healthy manner and in conditions of
freedom and dignity and that childhood and youth are protected against exploitation and against
moral and material abandonment.
The Immoral Traffic Prevention Act (1956) (ITPA) 78 is the main legal instrument addressing the
trafficking of human beings in the country. It is supplemented by provisions in certain other
domestic laws, including the Indian Penal Code. The ITPA is focused on trafficking for the
purpose of prostitution. Accordingly, it outlaws the running of a brothel; living on the earnings of
a prostitute; procuring, inducing or taking a person for the sake of prostitution; and detaining a
person in a place where prostitution is carried on. The Act also provides for the rescue and
rehabilitation of victims/survivors of trafficking, action against exploiters and increased
punishment for trafficking offences involving children. However, till date, its prime objective has
been to inhibit/abolish traffic in women and girls for the purpose of prostitution as an organized
means of living. The Act criminalizes the procurers, traffickers and profiteers of the trade but in
no way does it define trafficking per se in human beings.79 Under ITPA stringent punishment
has been prescribed which ranges from seven years to life imprisonment.80
The Indian Penal Code, 1860 for its part, contains various provisions related to child trafficking.
It imposes, for instance, criminal penalties for kidnapping, 81 abduction (including for the purpose
78 Renamed as such by drastic amendments to the Suppression of Immoral Traffic in Women and Girls
Act, 1956 (SITA).
80 Section 5 of ITPA, 1956 provides punishment for Procuring, inducing or taking person for the sake of
prostitution which is conviction with rigorous imprisonment for a term of not less than three years and not
more than seven years and also with fine which may extend to two thousand rupees.
pg. 26

of compelling marriage), buying or selling a minor for prostitution, 82 unlawful compulsory
labour, importing/procuring girls and buying or selling a person for slavery. 83 In addition, sexual
assault on a child under 16 years of age, even with formal consent, amounts to rape under the
IPC.84
Also relevant for the repression of child trafficking is the Juvenile Justice (Care and Protection
of Children) Act (2000) which includes prohibitions on cruelty to a child; employment of a child
for begging; providing a child with narcotic drugs or psychotropic substances; and forcing a
child into hazardous employment.85 Child is defined by the Act as a person under the age of 18.
The Juvenile Justice Act also establishes a framework for providing care, protection, treatment,
education, vocational training, development and rehabilitation to vulnerable children. To assist
with this, the Juvenile Justice Act authorizes the establishment of Child Welfare Committees and
protection homes in each state (Section 29). At present however, Child Welfare Committees and
protection homes have been established only in selected districts of the country, and their
operation is not without obstacles, especially as concerns the tracing of childrens families and
their possible return to their homes.86 From the point of view of child protection, a key problem
with the JJ Act is that it does not require state governments to form district Child Welfare
Committees and Juvenile Justice Boards. Nor are state governments required to establish and
maintain childrens homes and shelter homes. The Juvenile Justice Act states ambiguously that
81 Section 366, Indian Penal Code.
82 Section 372 and 373, Indian Penal Code.
83 Section 370, Indian Penal Code
Bengal, June 2010 March 2011,http://www.idlo.int/Publications/FinalReportGirlsProject.pdf.
85 Juvenile Justice (Care and Protection of Children) Act (2000), Sections 23, 24, 25 and 26.
Bengal, June 2010.
pg. 27

the state government may constitute or establish these bodies. In general, the rehabilitation
mechanisms set up under the Act could benefit from better coordination among concerned bodies
at the implementation stage.
Some States also enacted their own Acts87 like:
Karnataka Devadasi (Prohibition of Dedication) Act, 1982: Act of dedication of girls for the
ultimate purpose of engaging them in prostitution is declared unlawful whether the dedication is
done with or without consent of the dedicated persons.
Andhra Pradesh Devadasi (Prohibiting Dedication) Act, 1989: Penalty of imprisonment for three
years and fine are stipulated in respect of anyone, who performs, promotes, abets or takes part in
Devadasi dedication Ceremony.
Lastly, in Goa Childrens Act, 2003, trafficking is specially defined; every type of sexual
exploitation is included in the definition of sexual assault; responsibility of ensuring safety of
children in hotel premises is assigned to the owner and manager of the establishment; photo
studios are required to periodically report to the police that they have not sought obscene
photographs of children; and stringent control measures were established to regulate access of
children to pornographic materials.
CRIMINAL LAW AMENDMENT ACT, 2013
The recent Criminal Law Amendment Act, 2013 recognises trafficking as an offence in the
Section 370 of the Indian Penal Code. This is on similar lines as the Palermo Protocol, ratified by
India in May 2011, following a Supreme Court judgement defining trafficking in public interest
litigation (PIL) field by Bachpan Bachao Andolan in 2011. The bill targets the entire process that
leads to trafficking of a person and also makes the employment of a trafficked person and
subsequent sexual exploitation a specific offence under Section 370 A. 88 While the old section
370 of Indian Penal Code dealt with only buying or disposing of any person as a slave the new
section will take in its purview buying or disposing of any person for various kinds of
87 S. K. ROY, Child trafficking in India: Realities and realization, IUAES2013, PANELMMM02, http://www.mecon.nomadit.co.uk/pub/conference_epaper_download.php5?
PaperID=11283&MIMEType=application/pdf
pg. 28

exploitation including slavery. This provision includes organ trade as well. As the explanation
further clarifies exploitation would also include prostitution. This is in addition to the ITP Act,
1956.
The new section also ensures that persons involved at each and every stage of trafficking chain
are brought within the criminal justice system. Also by specifically including that if a person is
brought with his/her consent, where such consent is obtained through force, coercion, fraud,
deception or under abuse of power, the same will amount to trafficking, the law has been
substantially strengthened. This will cover all situations where girls who happen to be major are
duped with promises of marriage and willingly accompany the traffickers who exploit them in
various ways. It has also been specifically added in the provision that consent of the victim is
immaterial for the determination of the offence.89
The new section also differentiates the instances of trafficking major persons from minor
persons. This differentiation is brought about by providing separate penalty for each with higher
minimum sentence for trafficking minor persons. In addition the section also provides for
enhanced punishment for repeated offender as well as where the offender traffics more than one
person at the same time. By providing that trafficking in minor persons on a repeated conviction
will attract imprisonment for life (meaning the remaining natural life) the law has been
substantially changed.90 This will surely act as a big deterrent. Involvement of a public servant
including a police officer shall entitle him to life imprisonment which shall mean the remaining
natural life.91 Section 370A further adds strength to trafficking related law by criminalizing
employment of a trafficked (major/minor) person. A person who has reason to believe or
88 India Prohibits All forms of Trafficking, March 21st, 2013, Bachpan Bachao Andolan available
at http://www.bba.org.in/news/210313.php.
89 Garima Tiwari, Children as Victims of Trafficking in India,
http://acontrarioicl.com/2013/05/27/children-as-victims-of-trafficking-in-india/pdf.
90 Piecemeal Approach available at http://www.frontline.in/social-issues/general-issues/piecemealapproach/article4431434.ece.
91 Rajul Jain, Human Trafficking And Law: Understanding Criminal Law (Amendment) Ordinance,
2013.
pg. 29

apprehension that the minor/major person employed by them has been trafficked will make them
criminally liable. This places a huge responsibility on the employers who were till now, let off
easily under the not so strict provisions of the child labour laws and juvenile related laws. Here
also a higher minimum prison term is prescribed where a minor person is involved. Also
important is the fact that irrespective of age of the person employed, simply employing a
trafficked person is an offence. This provision will go a long way in ensuring that people verify
the antecedents of the placement agencies as also get the police verification of the persons
employed. This will also aide in curbing the huge demand for labour who are victims of unsafe
migration.92
LAW ENFORCEMENT IN INDIA
The various efforts undertaken by Indian Government to combat the problem of child trafficking
are based on the Report of the Central Advisory Committee on Child Prostitution, the
recommendations of the National Commission for Women and the directions of the Supreme
Court of India as well as the experiences of various non-governmental organizations working in
this area. The Ministry of Women and Child Development, the Nodal Ministry in the
Government of India dealing with issues concerning women and children drew up a National
Plan of Action to Combat Trafficking and Commercial Sexual Exploitation of Women and
Children in the year 1998. The Ministry of Women and Child Development has requested all
Secretaries of the Department of Women and Child Development in the States and Union
Territories to hold regular meetings of State Advisory Committee constituted under the 1998
National Plan of Action to Combat Trafficking and Commercial Sexual Exploitation of Women
and Children and monitor initiatives being undertaken by them with regard to prevention, rescue,
rehabilitation, reintegration and repatriation of victims of trafficking. 93 The Ministry of Women
and Child Development has also undertaken a study in collaboration with UNICEF on Rescue
and Rehabilitation of Child Victims Trafficked for Commercial Sexual Exploitation. The Report
92 Ibid.
93 National Human Rights Commission, Integrated Plan Of Action To Prevent And Combat Human
Trafficking With Special Focus On Children And Women,
http://nhrc.nic.in/Documents/PLANOFACTION.doc.
pg. 30

of this study was released to the public in 2005. It has also formulated a Protocol for Pre-Rescue,
Rescue and Post-Rescue Operations of Child Victims of Trafficking for Commercial Sexual
Exploitation. This Protocol contains guidelines for State Governments and a strategy for Rescue
Team Members for pre-rescue, rescue and post-rescue operations concerning children who are
victims of trafficking and were sexually being exploited for commercial reasons.94
In September 2006, the Indian government responded to the trafficking issue by creating a
central anti-trafficking law enforcement nodal cell. The nodal cell is a federal two-person
department responsible for collecting and performing analysis of data related to trafficking,
identifying the causes of the problem, monitoring action taken by state governments, and holding
meetings with state-level law enforcement. In 2007, three state governments established antitrafficking police units, the first of this kind in the India. 95 In October 2006, the central
government passed a law banning the employment of children in domestic work. In July 2006,
the Maharashtra government was given authority by the Supreme Court to seal brothels. In
March, 2008 Ministry of Labour & Employment has also issued a Protocol on Prevention,
Rescue, Repatriation and Rehabilitation of Trafficked & Migrant Child Labour. In addition to
this Ministry has also issued guidelines in 2010 to all the State Governments/UTs administrations
on regulation of functioning of private placement agencies. Many State Governments have made
provisions for registration of private placement agencies under Shops & Establishments Act.96
In 2006, for the entire country, only 27 convictions for trafficking offenses were reported.
From October 2006 to December 2006, 1672 child labour violations were reported, but no one
was criminally prosecuted. Also in 2006, 685 suspected sex traffickers were detained, but no
convictions were reported.97 Two specific examples given in the Trafficking in Persons report
pertain to rescue missions. In New Delhi, 234 children were rescued by police from embroidery
94 Ibid.
95 Misty Button, Combating Human Trafficking in India: How the United States can Serve as Catalyst
for Change, 2007.
96 Ministry Of Labour Press Release, Trafficking in Girls Measures taken by Government of India to
combat trafficking, http://nlrd.org/childs-rights-initiative/news-from-government-of-india-child-rightsinitiative/trafficking-in-girls-measures-taken-by-government-of-india-to-combat-trafficking.
pg. 31

factories and rice mills. The owners of these businesses did not receive punishment. Forty-three
government-run rescue missions freed 275 victims of commercial sex trafficking, however the
government did not report any convictions on those accounts as well. As per inputs provided by
National Crime Records Bureau (NCRB), the total number of cases registered under different
provisions of law which come under the generic description of human trafficking during the
period 2009, 2010 and 2011 were 2848, 3422 and 3517 respectively.98 One reason for the
registration of less number of cases can be the connivance of officials of high ranking with the
traffickers for personal gain. Recently, one such incidence was reported in December 2012, in
which a police officer was also suspended.99
Moreover, Criminal sanctions against human trafficking are often too lenient, 100 scattered across
many different laws and largely underutilized by the State Government in the areas worst
affected by trafficking. NGOs and human rights activists are left to fill the void of the
governments negligence. Without a significant amount of funds, how much of an impact can
NGOs have? Since the crisis is too big, the Indian government must step up and address this
issue. The lack of specific and/or adequate legislation on trafficking at the national level has
been identified as one of the major obstacles in the fight against trafficking. There is an urgent
need to harmonize legal definitions, procedures and cooperation at the national and regional
levels in accordance with international standards. The passage of unified, comprehensive
legislation on human trafficking could be a platform for significant progress in the awareness of
public officials. It could also serve as a clear tool for use by NGOs and human rights activists.
97 Supra note 72
98 Ministry Of Labour Press Release, Trafficking in Girls Measures taken by Government of India to
combat trafficking, http://nlrd.org/childs-rights-initiative/news-from-government-of-india-child-rightsinitiative/trafficking-in-girls-measures-taken-by-government-of-india-to-combat-trafficking.
99 Anand Haridas, Human trafficking: Inquiry reveals lacunae in system,
http://www.thehindu.com/todays-paper/tp-national/tp-kerala/human-trafficking-inquiry-reveals-lacunaein-system/article4202594.ece.
100 Recovering Childhoods: Combating Child Trafficking In Northern India, October
2005,http://www.freetheslaves.net/Document.Doc.
pg. 32

RECOMMENDATIONS
In India, not just the Central Government but also the concerned State Governments must act to
uphold our own constitutional principles and international treaty obligations and work toward the
full enjoyment of rights by all citizens, regardless of caste or descent. The steps which are
needed to be taken are:
Define the offence of child trafficking as it has been defined in only one state law (Goa
Childrens Act).
Enact laws which include support for the victims of trafficking, such as legal support, mental
support by helping to return to their country, village and community.
Make the legal process more child-friendly.
Establish a child protection authority to address child abuse and exploitation including
trafficking and commercial exploitation.
Enact provisions which protect children from becoming victims again, if once they have been
rescued and also ensure that laws do not further victimize them for any offence they may
have committed while being trafficked.
Lastly, NGOs, not just individuals, should be allowed to file a First Information Report (FIR) in
trafficking cases. Currently if an NGO wants to file an FIR, an individual working for the NGO
must file the FIR personally. If that individual later leaves the NGO or takes on too many other
cases, that individual is still the only person who can officially take part in the court proceedings.
This is problematic not only for the individual and the organization in cases that can last seven
years, but also for the safety of the individual. In many cases, traffickers have threatened
individuals who filed an FIR while working for an NGO.
CHAPTER VIII
INTERNATIONAL LEGAL INSTRUMENTS
pg. 33

Convention for the Suppression of Traffic in Person of the Exploitation of the Prostitution of
Others (The Trafficking Convention):101 The international community first denounced trafficking
in the Trafficking Convention, which was approved by the General Assembly of the United
Nations in 1949.102 The Convention calls on states parties to punish traffickers and to protect all
persons against such abuse. It also calls on states parties so far as possible to make suitable
provisions for [trafficking victims] temporary care and maintenance, to repatriate trafficked
persons only after agreement . . . with the State of destination, and where such persons cannot
pay the cost of repatriation, to bear the cost as far as the nearest frontier. 103 To a certain extent,
this Convention was a legal turning point, as it was the first international instrument on
trafficking and related issues that was legally binding.
After this, the main protocol is the Protocol to Prevent, Suppress and Punish Trafficking in
Persons, especially women and children. It aims to prevent and combat trafficking of women and
children and provide assistance to the victims.
The United Nations Office on Drugs and Crime (UNODC) is responsible for implementing the
Protocol. It offers practical help to states with drafting laws, creating comprehensive national
anti-trafficking strategies, and assisting with resources to implement them. In March 2009,
UNODC launched the Blue Heart Campaign to fight human trafficking, to raise awareness and to
encourage involvement and inspire action. The Protocol104 commits of ratifying states to prevent
and combat trafficking in persons, protect and assist victims of trafficking and promote
cooperation among states in order to meet those objectives. It prohibits the trafficking of children
101 Approved by General Assembly resolution 317 (IV) of 2 December 1949 and Entry into force: 25
July 1951, in accordance with article 24.
102 Trafficking in Women and Children, UNIFEM GENDER FACT SHEET No.
2,http://www4.worldbank.org/afr/ssatp/resources/html/gender-rg/Source%20%20documents/Issue
%20and%20Strategy%20Papers/trafficking/ISTRFK2%20UNIFEMtrafficking%20fact%20sheet.pdf.
103 Convention for the Suppression of the Traffic in Persons, Article 19.
104 The Protocol obligates ratifying states to introduce national trafficking legislation.
pg. 34

(which is defined as being a person under 18 years of age) for purposes of sexual exploitation,
exploitative labour practices or the removal of body parts.105
The Protocol reflects the first international consensus on the definition of trafficking, which is
the first step toward a concerted international effort to combat trafficking. Beyond the definition,
the true force of the document lies in the law enforcement provisions. Article 5 obligates State
Parties to criminalize trafficking, attempted trafficking, participating as an accomplice, and
organizing and directing trafficking. Additionally, Article 10 requires law enforcement training to
help identify potential trafficking victims and organized crime methods used to traffic
individuals. Articles 11 and 12 mandate strengthened border control measures, such as checking
travel documents, boarding vehicles for inspection, and increasing the quality of travel
documents to reduce fraud. The mandatory provisions regarding victims are an additional
advantage of the Protocol. For example, Article 9 addresses mandatory prevention measures,
specifically citing mass media information campaigns, close cooperation with NGOs, and the
creation of social and economic incentives. Examples of such incentives include microcredit
lending programs, social advancement of women, job training, or tax incentives to start small
businesses.
Optional Protocols to the Convention on the Rights of the Child: In 2000, the UN General
Assembly also adopted two optional protocols 106 to strengthen the Convention. One protocol
required governments to increase the minimum age for recruitment into the armed forces from 15
years and to ensure that members of their armed forces under the age of 18 do not take a direct
part in armed conflict. The other protocol provided detailed requirements for governments to end
the sexual exploitation and abuse of children. It also protects children from being sold for nonsexual purposes, such as other forms of forced labour, illegal adoption and organ donation.
105 Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children,
http://en.wikipedia.org/wiki/Protocol_to_Prevent,_Suppress_and_Punish_Trafficking_in_Persons,_especi
ally_Women_and_Children
106 Optional Protocols, adopted in 2000, are: (i) Optional Protocol to the Convention on the Rights of
the Child on the sale of children, child prostitution and child pornography; and (ii) Optional Protocol to
the Convention on the Rights of the Child on the involvement of children in armed conflict.
pg. 35

Articles 34 and 35 of the Convention on the Rights of the Child say that governments should
protect children from all forms of sexual exploitation and abuse and take all measures possible to
ensure that they are not abducted, sold or trafficked. The Conventions Optional Protocol on the
sale of children, child prostitution and child pornography supplements the Convention by
providing States with detailed requirements to end the sexual exploitation and abuse of
children.107
The Protocol108 provides definitions for the offences of sale of children, child prostitution and
child pornography. It also creates obligations on governments to criminalize and punish the
activities related to these offences. It requires punishment not only for those offering or
delivering children for the purposes of sexual exploitation, transfer of organs or children for
profit or forced labour, but also for anyone accepting the child for these activities.109 The Protocol
also protects the rights and interests of child victims. Governments must provide legal and other
support services to child victims. This obligation includes considering the best interests of the
child in any interactions with the criminal justice system. Children must also be supported with
necessary medical, psychological, logistical and financial support to aid their rehabilitation and
reintegration.
Till May 2012, 157 states have become party to the Optional Protocol to the Convention on the
Rights of the Child on the sale of children, child prostitution and child pornography and 147 state
parties have ratified Optional Protocol to the Convention on the Rights of the Child on the
involvement of children in armed conflict.110 While the ratification of the Optional Protocols is
107 As a complement to the Convention on the Rights of the Child, interpretation of the Optional
Protocols text must always be guided by the principles of non-discrimination, best interests of the child
and child participation.
108 After receiving the first 10 ratifications needed for its entry into force, the Optional Protocol on the
sale of children, child prostitution and child pornography became legally binding on 18 January 2002.
Today, more than 100 countries have signed and ratified this Protocol.
109 Convention on the Rights of the Child.
110 UNICEF, Universal ratification and effective implementation of the Optional Protocols to the CRC
close at hand, http://www.unicef.org/protection/57929_62536.html.
pg. 36

necessary, it is not enough. Measures must be taken to implement their provisions. Without
effective implementation, the Optional Protocols are simply words on paper. State Parties need to
develop and implement comprehensive strategies to prevent and respond to violence against and
exploitation of children. According to the information provided on the website of UNICEF,
Governments and civil society around the world are taking steps to implement the Optional
Protocols, often with UNICEF support. In Ukraine, for example, efforts are under way to reform
the criminal code to combat child abuse images and protect children from sexual exploitation. 111
In several countries, specialized police units have been set up to ensure sensitive responses to
child victims of violence, including sexual exploitation and abuse.112 More countries are
investing in comprehensive support services for children who have experienced violence and
exploitation, including health, legal, protective and counselling services. The global campaign
has presented a powerful opportunity to strengthen protections for children. Still, accelerated
efforts are needed at national, regional and global levels to ensure universal ratification and
effective implementation of both Optional Protocols.
Convention on the Elimination for All Forms of Discrimination Against Women: Under
CEDAW, states parties are obliged to eliminate discrimination and must take all appropriate
measures to suppress all forms of traffic in women (articles 2e and 6). However, the Convention
does not explain what these measures might be.
Some countries have expressed concern that, although the Convention itself does not require that
acts of prostitution be criminalized, several of its provisions have the indirect effect of making
the practice of prostitution illegal. Australia, for example, noted that these provisions blur the
distinction between voluntary and coerced prostitution. To consider voluntary sex work and
coercive prostitution as the same issue, and therefore to demand the outlaw of prostitution per se,
is to view prostitution as a moral issue and to consider sex workers as people unable to make
informed decisions on their life. Such a view is paternalistic and raises serious human rights
111 Ibid.
112 Ibid.
pg. 37

implications. Further, criminalization of the voluntary sex industry fosters conditions of violence
against women sex workers.113
Convention on Combating the Crime of Trafficking in Women and Children for Prostitution:
Concerned over the trafficking of women and children within and between countries in the
region, SAARC adopted a Regional Convention on Combating the Crime of Trafficking in
Women and Children for Prostitution114 in January 2002, during the Eleventh Summit in
Kathmandu. The Convention calls for cooperation amongst Member States in dealing with
various aspects of prevention, interdiction and suppression of trafficking in women and children
for prostitution, and repatriation and rehabilitation of victims of trafficking. It also calls for
prevention of use of women and children in international prostitution networks, particularly
where countries of the region are the countries of origin, transit and destination. It provides that
State Parties to the Convention, in their respective territories, shall provide for punishment of
any person who keeps, maintains or manages or knowingly finances or takes part in the financing
of a place used for the purpose of trafficking and knowingly lets or rents a building or other place
or any part thereof for the purpose of trafficking. 115 In trying offences under the Convention, 116
judicial authorities in Member States shall ensure that the confidentiality of the child and
women victims is maintained and that they are provided appropriate counselling and legal
assistance.117
113 Trafficking in Women and Children, UNIFEM GENDER FACT SHEET No.
2,http://www4.worldbank.org/afr/ssatp/resources/html/gender-rg/Source%20%20documents/Issue
%20and%20Strategy%20Papers/trafficking/ISTRFK2%20UNIFEMtrafficking%20fact%20sheet.pdf.
114 The Convention defines trafficking as the moving, selling or buying of women and children for
prostitution within and outside a country for monetary or other considerations with or without the consent
of the person subjected to trafficking.
115 Article III.
116 Article V.
117 FOCUS, South Asian Convention against Trafficking, June 2005 Volume 40,
http://www.hurights.or.jp/archives/focus/section2/2005/06/south-asian-convention-againsttrafficking.html.
pg. 38

A Regional Task Force has been formed in all the Member States to monitor and assess the
implementation of various provisions of the Convention on Combating the Crime of Trafficking
in Women and Children for Prostitution. The Regional Task Force has met in 2007, 2008, 2009,
2010 and 2011. During the First Meeting of the Regional Task Force (New Delhi, 26 July 2007),
the Meeting agreed to exchange information on best practices by the respective Governments,
NGOs and members of the Civil Society to combat Trafficking in Women and Children. It was
decided that a Standard Operating Procedure (SOP) to implement various provisions of the
Convention, including reporting under Article VIII (5) and repatriation of victims of Trafficking
and related matters as defined in the Convention, would be developed. The Third Meeting of the
Regional Task Force (Shimla, May 2009) finalized the draft Standard Operating Procedure.118
Furthermore, the Special Session of Regional Task Force held at the SAARC Secretariat in April
2010 prepared the draft outline for the establishment of two regional Toll-free helplines
dedicated for women and children respectively. Women and children survivors or victims of
violence or discrimination can then dial up these numbers to seek help and support irrespective
of the country they are in South Asia. The Project proposal was submitted to the SDF Board and
approved. The project has been expected to start in 2013.119
CHAPTER - IX
CONCLUSION
Rapidly Increasing rate of crimes indicates children are no safe in the Indian cities, yearly based
analysis indicates the problem of the offences is very painful. Country like India even though the
law and social condition are very rigid, other side there is need of thinking about the
consequences of offences. Children are victimizing due to many factors which affect child
mentally and physically. Psychological trauma may remain and it will impact on childrens
future. This kind of developments will surely harm society. But the rigid law and criminal
118 SAARC, Technical Committee on Women, Youth and Children, Gender related issues, http://saarcsec.org/areaofcooperation/detail.php.
119 Ibid.
pg. 39

justice, as well as law enforcement agencies are taking over all the challenges and to prevent
offences. Even morality of the society and the human values should be considered, there is social
responsibility of all the society members in order to fight against it. 120 Social and community can
play major role in the prevention of offences against children.
A overwhelming 41% of Indias Population is constituted by children. 121 Therefore, the growing
incidence of sexual violence, abuse and exploitation of children does raise many concerns. The
problem in India is acute owing to its conservative social environment. The lack of a legal
mechanism exclusively directed at curbing such offences is the prime reason behind the breeding
of sexual predators. The IPC has never addressed crimes perpetrated against children and yet
legislature has continuously impeded several attempts at drafting a separate and robust legislative
instrument to this end. However, drafting a specific legislation targeting child sexual abuse is
only half the battle won. The next major impediment is compelling people to come forward and
report such offences.
Lastly, protection must be accorded to the child during the course of the trial to make it as
minimally harrowing as possible. Therefore, all efforts must be combined to ensure that children
do not fall prey to such heinous crimes and live a healthy childhood.
Addressing human trafficking truly requires a comprehensive and multi-faceted strategy, which
includes efforts aimed at the rehabilitation and social reintegration of trafficked victims.
Otherwise, the strategy will not be successful in the long run. In essence, at the very core of any
anti-trafficking strategy must be an unwavering commitment from individual countries and other
multilateral actors to address human trafficking at every stage of this cycle, from prevention to
recruitment, transportation to bonded labour, and from rescue to reintegration. Without this
commitment, anti-trafficking efforts will be fundamentally unable to intervene on behalf of the
trafficked victims whose human rights violations form the backbone of this exploitative trade.122
120 Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, (1985).
121 Population in different age groups and their proportion in the total population, Ministry of Home
Affairs, Office of the Registrar General and Census Commissioner of India, (1 December 2005), available
athttp://censusindia.gov.in/Census_And_You/age_structure_and_marital_status.aspx (last visited 20 Oct,
2015).
pg. 40

Also, the enactment of the law on paper with no real training and support to the functionaries
would be futile and therefore, what is needed now is actual, planned and effective
implementation. Involving the community participation in the whole implementation process
would create a greater impact.123 The procedures and technicalities should not reduce the
ambitious legislations to empty words, because at stake here is the children- the future of the
nation.
Governments have to do more to guarantee children and young people their right to protection
from trafficking. There is hope, and real and practical solutions exist. Trafficking of children for
sexual purposes happens in virtually every country in the world developed and developing
and we must see governments uphold their commitments to those solutions.-Carmen M
Madrinan.124
122 Dr. Hetal Pandya and Dr. Hemal Pandya, Racial Discrimination and Human Trafficking in India:
Challenges Ahead, International Journal of Humanities and Social Science, Vol. 1 No. 6; June2011.
123 Garima Tiwari, Children as Victims of Trafficking in India,
http://acontrarioicl.com/2013/05/27/children-as-victims-of-trafficking-in-india/pdf.
Bengal, June 2010.
pg. 41
pg. 42

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