Bachpan Bachao Andolan vs Union Of India & Ors

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

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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.

3 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".

4 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

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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)

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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.

7 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.

8 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

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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

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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.

11 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

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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,

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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.

16 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

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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.

18 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;

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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

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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:-

21 " ..... The recruitment, transportation,

transfer, harboring or receipt of

persons by means of threat or use of

force or other forms of coercion, of

abduction, of fraud, of deception, of the

abuse of power or of a position of

vulnerability or of the giving or

receiving of payments or benefits to

achieve the consent of a person having

control over another person, for the

purpose of exploitation....".

3. Exploitation shall include at a minimum, the

exploitation of the prostitutes of others or other

forms of sexual exploitation, forced labour or

service, slavery or practices similar to slavery,

servitude or the removal of organs.

4. It is submitted that children under 18 years of age

cannot give valid consent. It is further submitted

that any recruitment, transportation, transfer,

harbouring or receipt of children for the purpose of

exploitation is a form of trafficking regardless of the

means used. Three significant elements constitute

trafficking:-

a. The action involving recruitment

and transportation;

b. The means employed such as

force, coercion, fraud or deception

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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;

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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;

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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:

25 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

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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

27

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

28

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

29

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

30

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.

31 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:-

32 "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

33

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

34

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.

35 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;

36

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;

37

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

38

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

39

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

40

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.

41 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

42

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

43

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

44

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,

45

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

46

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.

47 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

48

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

49

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

50

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;

51

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,

52

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;

53 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;

54 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.

55 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:

56 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;

57

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:

58 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

59

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

60

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

61

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

62

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,

63

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