Supreme Court of India
BACHPAN BACHAO ANDOLANversusUNION OF INDIA & OTHERS
- Citation
- 2011 INSC 307
- Decided
- 18 April 2011
- Disposal
- Hearing Adjourned
- Bench
- DALVEER BHANDARI
Holding
The Supreme Court held that, under Article 21A and related constitutional provisions, the Central Government must issue a notification prohibiting the employment of children in circuses and must undertake immediate rescue, protection, and rehabilitation measures.
Summary
The Supreme Court entertained a public‑interest writ filed by Bachpan Bachao Andolan seeking protection for children employed in Indian circuses, who were subjected to physical, sexual and emotional abuse and denied education. The Court examined whether such employment violated the children’s fundamental rights, especially the right to free and compulsory education under Article 21A and other constitutional guarantees. Relying on the Juvenile Justice (Care and Protection of Children) Act, 2000 and international anti‑trafficking conventions, the Court held that the State must prohibit child employment in circuses and take immediate remedial steps. It directed the Central Government to issue a notification banning child employment in circuses within two months, to conduct simultaneous raids to rescue children, to place rescued children in care homes until they turn 18, to engage parents where appropriate, and to formulate rehabilitation schemes. The Secretary of the Ministry of Human Resources Development was ordered to file a compliance affidavit within ten weeks. The petition was allowed and comprehensive directions were issued.
Issues considered
- Whether the employment of children in circuses violates their fundamental rights, including the right to free and compulsory education under Article 21A of the Constitution.
- Whether the State is constitutionally obligated to prohibit the employment of children in circuses through a statutory notification.
- Whether the government must conduct rescue raids and provide protective custody for rescued children under the Juvenile Justice (Care and Protection of Children) Act, 2000.
- Whether the provisions of the Juvenile Justice Act, the Child Labour Acts and related statutes apply to children trafficked into circuses.
- Whether the State must frame rehabilitation schemes and report compliance to the Court.
Legislation cited
- Child Labour (Prohibition and Regulation) Act, 1986
- Constitution of Indias. Article 14, s. Article 15, s. Article 16, s. Article 17, s. Article 21, s. Article 21A, s. Article 23, s. Article 24
- Employment of Children Act, 1938
- Goa Children Act, 2003
- Indian Penal Code, 1860s. 319-329, s. 339-346, s. 350-351, s. 361-363, s. 365, s. 367, s. 370, s. 41, s. 416, s. 420, s. 465, s. 466, s. 468, s. 471, s. 503, s. 506
- Juvenile Justice (Care and Protection of Children) Act, 2000s. s.31, s. s.33(3)
- Minimum Wages Act, 1976
- Prevention of Immoral Traffic Act, 1956
- Right of Children to Free and Compulsory Education Act, 2009
- The Children (Placing of Labour) Act, 1933
- UN Protocol to Prevent, Suppress and Punish Trafficking in Persons (Palermo Protocol)
Subjects
child labourchild traffickingcircusfundamental rightsArticle 21AJuvenile Justice Actrehabilitationrescue raidsfree educationpublic interest litigationhuman trafficking
Judgment
[2011] 5 S.C.R. 353
BACHPAN BACHAO ANDOLAN A
v.
UNION OF INDIA & OTHERS
(Writ Petition (C) No. 51 of 2006)
APRIL 18, 2011
B
[DALVEER BHANDARI AND A. K. PATNAIK JJ.]
CHILD WELFARE:
Children engaged in circuses - Protection, from physical C
and sexual abuse - HELD: Government of India is fully aware
about the problems of children working in various places,
particularly, in circuses - Right of children to free and
compulsory education has been made a fundamental right
under Article 21-A of the Constitution - Directions given to the o
Central Government to issue suitable notifications prohibiting
employment of children in circuses within two months -
Further directions issued to conduct simultaneous raids in all
the circuses to liberate the children and check the violation
of their fundamental rights and to take steps for their E
rehabilitation - The Secretary of Ministry of Human Resources
Development, Department of Women and Child Development
directed to file a comprehensive affidavit of compliance -
Court also accepted the submission and recommendations
of the Solicitor General of India - Each State should issue a
Circular indicating how the recommendations will be F
implemented - Constitution of India, 1950 - Article 21-A read
with Articles 14 - 17,21,23 and 24-Juvenile Justice (Care and
Protection of Children) Act, 2000- s.33(3) - Public interest
' litigation - U. N. Protocol to Prevent, Suppress and Punish
Trafficking in Persons, .i.e. the PALERMO Protocol on G
Trafficking.
The instant writ petition was filed in public interest by
the petitioner, namely, "Bachpan Bachao Andolan", in
353 H
354 SUPREME COURT REPORTS [2011) 5 S.C.R.
A order to protect the children in circuses from serious
violations and sexual and physical abuse.
Pursuant to the notice issued by the Court, the Union
of India, and various States and the Union Territories filed
replies. The Solicitor General of India broadened the
8 scope of the petition in order to deal with also the problem
of trafficking in women and children. During the course
of hearing suggestions and recommendations were
made by the Solicitor General of India for preventing child
abuse, commercial sexual abuse of women and children,
C human trafficking, and for rehabilitation of rescued
children, effective functioning of Child Welfare
Committees under the Juvenile Justice (Care and
Protection of Children) Act, 2000, proper implementation
of adoption schemes and Integrated Child Programme
D Schemes, interface between National Commission for
Protection of Child Rights, State Governments and the
Ministry of Woman and Child Development.
Directing the matter to be listed on 19th July, 2011,
E the Court
HELD: 1.1 From the comprehensive submissions
made on behalf of the respondents, it is abundantly clear
that the Government of India is fully aware about the
problems of children working in various places,
F 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
G neighbourhood school. [para 67] [395-G-H]
1.2 The submissions of the Solicitor General of India
are accepted. Each State must issue a circular within four
weeks effectively indicating how the recommendations
H will be implemented. [para 66) [395-D-F]
BACHPAN BACHAO ANDOLAN·,:v. UNION OF INDIA & 355
ORS.
2.1 This Court plans to d·~al with the~problem of A
children's exploitation systematically. In this order the
directions are limited to regarding children working in the
Indian Circuses. Consequently,f it.
is directed:
(i) In order to implement the fl!ndamental right of the
8
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;
(ii) The respondents are directed to conduct C
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; D
(iii) The respondents are also directed to talk to the
parents of the children and in case they are willing
to take their children back to their homes, they may
be directed to do so after proper verification;
E
(iv) The respondents are directed to frame proper
scheme of rehabilitation of rescued children from
circuses;
(v) The Secretary of Ministry of Human Resources F
Development, Department of Women and Child
Development to file a comprehensive affidavit of
compliance within ten weeks. [para 68) [396-A-G]
N.R. Nair & Others v. Union of India & Others 2001 ( 3 ) G
SCR 353 = (2001) 6 sec 84 - cited
UN Protocol to Prevent, Suppress and Punish Trafficking
in Persons, i.e. the PALERMO Protocol on Trafficking -
cited .
H
356 SUPREME COURT REPORTS (2011] 5 S.C.R.
A Case Law Reference:
2001 ( 3 ) SCR 353 cited para 11
CIVIL ORIGINAL JURISDICTION : Under Article 32 of the
Constitution of India.
B
Writ Petition (Civil) No. 51 of 2006.
Gopal Subramanium, S.G. Shail Kumar Dwibedi, ASG,
Colin Gonsalves and Pramod Swarup, Jayshree Anand, Dr.
Manish Singhvi, Manjit Singh, AAG., Divya Jyoti, Jyoti
C Mendiratta, Aananat Asthana, A.K. Srivistava, Anand Varma,
Sushma Suri, Anubhav Kumar, Sunita Verma, Sadhana
Sandhu, S.N. Terdal, K.K. Mahalik, Noorjahan, Ajay Pal, Sanjay
R. Hegde, Amit Kr. Chawla, A. Rohen Singh, Tara Chandra
Sharma, Neelam Sharma, S.W. Qadri, Rajeev K. Dubey,
D Kamlendra Mishra, Anil Kumar Jha, Anis Suharawardy, S.
Mehdi Imam, T. Ahmad, Momota Oinam (for Corporate Law
Group), Mohanprasad Meharias, Devanshu Kumar Devesh, R.
Gopalankrishan, Milind Kumar, Gopal Singh, Manish Kumar,
Rituraj Biswas, Chandan Kumar, Janaranjan Das, Swetaketu
E Mishra, P.P. Nayak, Hemantika Wahi, Somanath Padhan,
Ashok Bhan, Savitri Pandey, Varuna Bhandari, D.S. Mahra, S.
Wasim A. Qadri, Sunita Sharma, Gunwant Dara, Anil Katiyar,
D.S. Mahra, Ramesh Babu M.R., T. Harish Kumar, Prasanth
P., V. Vasudevan, V.G. Pragasam, S.J. Aristotle, Prabu
F Ramasubramanian, Pradeep Purohit, B.S. Banthia, Kamini
Jaiswal, Naresh K. Sharma, Arun K. Sinha, Enatoli Sena,
Edward Belho, Pragayan Pradip Sharma, P.V. Yogeswaran,
R.N. Upadhya, Anil Shrivastav, Suparna Srivastava, Sudarshini
Ray, Ram Swarup Sharma, Rajesh Srivastava, Khwairapam
G Nobin Singh, Ratan Kumar Choudhuri, Anuradha Rustagi, D.
Bharathi Reddy, G. Prakash, S.S. Shamshrey, P.N. Gupta,
Aruna Mathur, Amarjeet Singh Girsa, Viman Dubey (for
Arputham Aruna & Co.). Dr. Indira Pratap Singh, Anuvrat
Sharma, Alka Sinha, Naresh K. Sharma, Manoj K. Mishra,
H Balaji Srinivasan, Madhusmita Bora, B.D. Vivek, A. Subhashini,
BACH PAN BACHAO ANDOLAN v. UNION OF INDIA & 357
ORS.
Kamal Mohan Gupta, K.N. Madhusoodhanan and R. Sathish A
for the appearing parties.
The Judgment of the Court was delivered by
DALVEER BHANDARI, J. 1. This petition has been filed
in public interest under Article 32 of the Constitution in the wake 8
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 C
human needs of food and water.
2. It is stated in the petition that the petitioner has filed this
petition following a series of incidents where the petitioner
came in contact with many children who were trafficked into o
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 E
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 irito the circuses, they are confined
to the circus arena, with no freedom of mobility and choice. They
F
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 G
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. H
358 SUPREME COURT REPOi~TS [2011] 5 S.C.R.
A 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
B 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.
c 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
D findings in the abovementioned research were compiled in a
report termed "Eliminating Child Labour from Indian Circuses".
6. Once all the above facts and figures were established,
the petitioner decided to implement a multi-pronged strategy
E 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
F circus owners and appealed to them to stop trafficking, .
bondage, Child labour and other violations of child rights. The
Indian Circus Federation (for short 'l.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
G 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 l.C.F. agreed to make a
H
BACHPAN BACHAO ANDOLAN v. UNION OF INDIA 359
& ORS. [DALVEER BHANDARI, J.]
declaration that there shall be no further use of children in the A
circuses in India and a full list of the children employed by them
will be provided to the petitioner and that they would voluntarily
phase out all the children from their circuses in a time bound
manner. It was also decided that the petitioner and its partner
Non-Governmental Organizations (for short, NGOs) in Nepal will B
help in repatriation and rehabilitation of liberated children.
8. The petitioner submitted that since the l.C.F. does not
have enough influence even on its own members, the
agreement did not get implemented. However, the petitioner C
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
factsin 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 D
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 E
for the children in the Great Indian circus (a non-federation
circus) which was found to be located in Palakkad, Kerala. In
June, 2004, the petitioner came to know through credible NGOs
and individuals working in Hetauda, Nepal that the daughters
of 11 parents were trapped into Great Roman Circus in India. F
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, G
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
H
360 SUPREME COURT REPORTS [2011] 5 S.C.R.
A 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.
B
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
C 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
D 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
E 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.
12. The petitioner has made various attempts to regulate
and improve the conditions of children in circuses including
F 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
G 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
H the Juvenile Justice (Care and Protection of Children) Act, 2000
BACHPAN BACHAO ANDOLAN v. UNION OF INDIA 361
& ORS. [DALVEER BHANDARI, J.]
and also suggests that intra-state trafficking of young children, A
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 B
should be empowered to award compensation to all those
victims rescued from the circuses with a time bound
rehabilitation packages and the State Government to create a
fund of the same.
14. Mostly, these children are sold to the circus owners
c
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 D
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 E
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 F
team, the living conditions were quite similar, but
nonetheless deplorable. There are separate·
sleeping arrangements for males and females, with
the Company Girls segregated from the rest of the
circus troupe by a boundary. There are also G
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. H
362 SUPREME COURT REPORTS [2011] 5 S.C.R.
A 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
B 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
c 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.
D 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
E 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
F 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
G 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
H serious medical condition or an accident during
BACHPAN BACHAO ANDOLAN v. UNION OF INDIA & 363
ORS. [DALVEER BHANDARI, J.]
training or performance, the trainer or the manager A
usually accompanies the patient to the nearest
medical help. The management bears the charges
of the treatment during that time, but later deducts
it from the salary of the incumbent. However, some
managements do bear the medical bill of the artists B
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 C
and deplorable, with no facilities and basic
amenities being provided to the circus artists, not
even proper sanitation.
vi) High Risk Factor
D
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 E
to look into the health care needs of the artists,
even at the time of emergency. It was found that the
lives of the children was endangered due to the risk
factor involved in the circuses, especially those who
were involved in items like ring of death, well of
death, sword items, rope dance etc. They F
constituted 10% of the total number of childr.en. 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 G
heightens the risk involved. In fact, the research
team witnessed an accident while visiting one of
the circuses.
H
364 SUPREME COURT REPORTS [2011] 5 S.C.R.
A 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
B
rarely happens. Salary accounts are often
manipulated and the loss due to accidents or
mishaps is not compensated.
viii) Bound by Contract
c
The child artists are brought to the circuses to be
contracted for 3 to 10 years and once the contract
is signed/agreed upon by the parents or guardians
of the children, these young ignorant children are
D bound and indebted to the circw:. 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
E
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
F 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 <.;annot share their agony
and grievances or raise their voice against the
torturous life they are forced to lead. For them, there
G
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
H
BACHPAN BACHAO AN DOLAN v. UNION OF INDIA & 365
ORS. [DALVEER BHANDARI, J.]
of life, that is the aspect they see in the circuses A
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 B
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 c
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 0
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. E
16. The employment of the children in circus involves many
legal complications and in that respect major complications are
as under:
F
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 G
of thoughts and feelings, thereby violating the
fundamental right to freedom of expression.
3. Competency to enter into contract for working in
circus. H
366 SUPREME COURT REPORTS [2011] 5 S.C.R.
A 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
B Act, Equal Remuneration Act, 1976 and Rules
made thereunder and the Bonded Labour System
(abolition) Act, 1976 read with rules made their
under, the Factories Act, 1948, Motor Transport
Workers Act, 1961 etc.
c 5. Existing labour laws and legitimacy of contracts of
employment for children.
6. The legitimacy of contracts of employment for
children and working conditions.
D
17. The petitioner has given innumerable instances in the
petition of abuse of children in the circu~es. All those instances
demonstrate under what horrible and inhumane conditions the
children have to perform in the circuses.
E 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
F industry including ensuring safety gears and other measures as
are done in other countries.
19. The petitioner has filed the petition with the following
prayers:
G 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;
H 2. Issue a writ of mandamus or any other appropriate
BACHPAN BACHAO ANDOLAN v. UNION OF INDIA & 367
ORS. [DALVEER BHANDARI, J.]
writ, order or direction directing the respondents to A
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 B
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 c
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 D
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
E
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;
F
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. G
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.
!
H
368 SUPREME COURT REPORTS [2011] 5 S.C.R.
A 21. Shri Gopal Subramal')ium, 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".
8 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
C captured, bought and sold in market places for
centuries. Human trafficking is one of the most
lucrative criminal activities. Estimates of the United
Nations state that 1 to 4 million people are trafficked
worldwide each year. Trafficking in women and
D 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
E
million (unofficial sources) stated to be child
labour;
b. 44,000 children are reported missing
annually, of which 11,000 get traced;
F
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
G 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
H against humanity. The convention being an
BACHPAN BACHAO ANDOLAN v. UNION OF INDIA &369
ORS. [DALVEER BHANDARI, J.]
international convention is limited to cross border A
trafficking but does not address trafficking within the
country. The definition of trafficking is significant:-
" ..... The recruitment, transportation, transfer,
harboring or receipt of persons by means of
8
threat or use of force or other forms of
coercio:i, 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 C
of a person having control over another
person, for the purpose of exploitation .... ".
3. Exploitation shall include at a rµinimum, the
exploitation of the prostitutes 9f others or other
forms of sexual exploitation, forced labour or D
service, slavery or practices similar to slavery,
servitude or the removal of organs.
4. lt is submitted that children under 18 years of age
cannot give valid consent. It is further submitted that
E
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:-
F
a. The action involving recruitment and
transportation;
b. The means employed such as force,
coercion, fraud or deception including abuse
G
of power and bribes; and
c. The purpose being exploitation including
prostitution.
5. Internationally, there is a working definition of child H
370 SUPREME COURT REPORTS [2011] 5 S.C.R.
A 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:-
B
·'
a. Bonded labour;
b. Domestic work;
c. Agricultural labour;
c
d. Employment in construction activity;
e. Carpet industry;
f. Garment industry
D
g. Fish/Shrimp Export;
h. Other sites of work in the formal and informal
economy.
E
7. Trafficking can also be for illegal activities such as:-
a. Begging;
b. Organ trade;
F
c. Drug peddling and smuggling;
8. Trafficking can be for sexual exploitation, i.e.
a. Forced prostitution;
G
b. Socially and religiously sanctified forms of
prostitution;
c. Sex tourism;
H d. Pornography;
BACHPAN BACHAO ANDOLAN v. UNION OF INDIA & 371
ORS. [DALVEER BHANDARI, J.]
9. Child trafficking can be to aid entertainment in A
sports:-
a. Circus/dance troupes;
b. Camel jockeying;
B
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 c
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
D
civilization;
b. Empathy for troubled children by adopting
non-discriminatory and attitudes free of bias;
c. Children must be protected in terms of well- E
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 F
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 G
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. H
372 SUPREME COURT REPORTS [2011) 5 S.C.R.
A 23. According to the Solicitor General it is the bounden duty
of the police to discharge its obligation. He submitted that the
following guidelines should be mandated:
i. Care must be taken to ensure the confidentiality of
the child and due protection must be given to her/
B
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
c 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
D 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
Ii-
or at any other place co-managed by police any
NGO/CBO. Support persons for the child should be
E
contacted and in their absence, any civil society
group working with/for children or members of
ewe (whoever the child feels comfortable with)
could be asked to the present;
F 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
G 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;
H
BACHPAN BACHAO ANDOLAN v. UNION OF INDIA 373
& ORS. [DALVEER BHANDARI, J.)
vii. No child should be kept in a Police Station; A
viii. Where a special juvenile police unit or a police
officer has been designated to deal with crimes
against children and crimes committed by children,
cases relating to children must be reported by such B
officer to the Juvenile Justice Board o.r 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 C
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 D
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,
E
abduction for wrorigful 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
F
intimidation. It is submitted that a direction must be issued to
the Commissioner of Police, Delhi and the State Governments
and Union Territories that their police force are required to be
sensitized to the above provisions while dealing with safety and
freedom of children.
G
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
H
374 SUPREME COURT REPORTS [2011) 5 S.C.R.
A 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.
8 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
C tourism. All state authorities such as airport authorities, border
police, railway police, traffic police, hotel owners are made
responsible under the law for protection of children and for
reporting offences against children. It is submitted that until a
suitable legislation is enacted, directions of a preventive nature
may be issued against the police authorities in all States to
D 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 Bo'nded
E 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 Sidi and Cigar Workers
(Conditions of Employment) Act, 1966, the West Bengal Shops
F and Establishment Act, 1963.
29. Learned Solicitor General submitted that each State
Government must constitute committees for the purpose of
preventing child labour. It is submitted that there should be an
apex committee constituted by each State Government with the
G following:
(a) The Chief Secretary of the State;
(b) Secretary incharge of Child and Women
Development;
H
BACHPAN BACHAO ANDOLAN v. UNION OF INDIA & 375
ORS. [DALVEER BHANDARI, J.]
(c) Director of Health and Family Welfare; A
(d) Commissioner of Police of the State;
(e) Two Psychiatrists to be nominated by the Indian
Psychiatric Society.
B
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 c
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.
D
32. Learned Solicitor General submitted that in the Ministry
of Family Welfare and Child Development, a division needs to
be created to deal with issues arising out of dissemination of
publications which are harmful to young persons, publishing
pornographic material in electronic form as well as the E
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. F
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 G
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
H
376 SUPREME COURT REPORTS [2011] 5 S.C.R.
A children. In a study1 published by the Department of women and
child development, Ministry of Human Resource Development,
Govt. of India, the objectives were:-
a) To obtain a better understanding of rescue and
rehabilitation processes;
B
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
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
0 area as well as take regional variations into
account.
The following statistics are alarming:-
lill
i) There are an estimated two million children, aged I
E between 5 and 15, forced into CSE around the
world;
ii) Girls between the ages of 10 and 14 years are
most vulnerable;
F iii) 15% of commercial sexual workers in India are I
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
G profession every year.
35. It is submitted that the report dealt with cross border
trafficking in the following way:-
1. Rescue and Rehabilitation of Child Vicrtims Traficked for Commercial
H Sexual Exploitation, a Report by UNICEF.
BACHPAN BACHAO ANDOLAN v. UNION OF INDIA & 377
ORS. [DALVEER BHANDARI, J.]
"Research on cross-border trafficking has indicated that A
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 B
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 C
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, D
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 E
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 F
increasingly lucrative business especially since the risk of
being prosecuted is vey low. Women and children do not usually
come to the brothels on their own will, but are brought through
highly systematic, organized and illegal trafficking networks run
by experienced individuals who buy, transport and sell children
into prostitution. Traffickers tend to work in groups and children G
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 coun~ry H
378 SUPREME COl)RT REPORTS [2011] 5 S.C.R.
A 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
8 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
C or operate independently. Often collusion of family members
forms an integral part of trafficking with uncles, cousins and
stepfathers acting as trafficking agents. In March, 1994 Human
Rights Watch Asia interviewed several trafficked victims of
whom six were trafficked into India from Nepal with the help of
D 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
E Womerl 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
F 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
G of action to combat trafficking and commercial sexual
exploitation of women and children in 1998.
41. It is submitted that there has now been a very careful
realization that the plan for rescue and rehabilitation must be
H through a conceptual map. The said map gives a very good
BACHPAN BACHAO ANDOLAN v. UNION OF INDIA 379
& ORS. [DALVEER BHANDARI, J.]
indication of the initiatives and possibly its positive and negative A
outcomes.
42. Learned Solicitor General submitted that a trafficked
child can be brought before the Magi~trate under two
circumstances: B
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;
c
b) the trafficked child can also be brought before the
Magistrate as an accused under section 8A and 88
of the ITPA.
The following directions are necessary:-
D
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;
E
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;
F
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
G
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;
H
380 SUPREME COURT REPORTS [2011] 5 S.C.R.
A 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
B sections 342, 366, 366A, 3668, 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.
c
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
D 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;
,j
E 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) bf the ITPA, 1956;
F I. 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
m.
.
and Protection) Act, 2002; ·
'
It is necessary that Courts must be directed that the
G 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
H children's best interest should be the priority.
BACHPAN BACHAO ANDOLAN v. UNION OF INDIA &381
ORS. [DALVEER BHANDARI, J.]
43. Learned Solicitor General submitted that Child Welfare A
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- B
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, c
2000. The said Magistrate must set out a report in relation to
the circumstances under which such a child has been lodged
in jail to the Chief Justice of the concerned High Court.
Thereafter the High Court may forward a report to this Court
for passing of appropriate orders in relation to the welfare of 0
the child.
44. Learned Solicitor General submitted thatU1e 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:- E
" ..... 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 F
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- G
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 H
382 SUPREME COURT REPORTS [2011] 5 S.C.R.
A been trafficked. Such children are to be considered as children
in need of care and protection. However, in states where the
I
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
B 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
C 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
D population so that their citizenry is productive. Resources must
be invested in children proportionate to their huge population.
48. As far as the total expenditure on children in 2005-2006
is concerned, it was 3.86% and in 2006-2007 it was increased
E 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
F 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
G 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
H Child in 1992. The Convention inter alia prescribes standards
BACHPAN BACHAO ANDOLAN v. UNION OF INDIA & 383
ORS. [DALVEER BHANDARI, J.]
to be adhered by all state parties in securing the best interest A
of the child.
50. Learned Solicitor General submitted that the millennium
development goals cannot be secured unless child protection
is an integral part of programmes, strategies and plans for their
8
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 ~ights agenda
for the development of children. C
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 D
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 . E
establishment and maintenance of various homes, salary of
staff, food, and clothing for children in need of care and
protection of juveniles in conflict with law. Financial assistance
is based on proposals submitted by States on a 50:50 cost
sharing basis.
F
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 G
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 H
384 SUPREME COURT REPORTS [2011] 5 S.C.R.
A 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
B monitored by courts and their living conditions must also be
carefully examined.
53. It is also submitted by the learned Solicitor General that
the point of responsibility for overseeing the conditions in the
juvenile home must also be shared by the District Magistrate
C 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
·0 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
E their reports to the Secretary of the Department concerned who
in turn must report to the Chief Secretary. The Chief Secretary
must be constructively responsible for the administration of the
programme for juvenile justice and also must supervise the
monetary spending and the manner in which the money spent
F 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
G 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.
H 54. It is further submitted by the learned Solicitor General
BACHPAN BACHAO ANDOLAN v. UNION OF INDIA & 385
ORS. [DALVEER BHANDARI, J.]
that the Integrated Child Protection Programme for Street A
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 B
concerned Collector. There must be a database of every NGO
including details of all the functionaries of the NGO with full
particulars including their addresses. In order to enable the
enrolment in schools of street children, vocational training,
occupational placement and to mobilize preventive health c
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 D
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
E
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.
F
55. Learned Solicitor General also gave suggestions as
under:
Child-line services are provided for children in
distress: These should be catalogued and there should be a G
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. A11 District Magistrates in the
country must post on the website their child-line service number H
386 SUPREME COURT REPORTS [2011] 5 S.C.R.
A and must give effective publicity to the seNices 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
8
database must be maintained in respect of orphans/
abandoned I 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
C have taken care of the child failing which adequate court-
monitored mei::lsures 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
D mechanic shops have to be rescued and a bridge education
has to be provided including vocational training. This must be
undertaken again by identifiable points of responsibility. It is
necessary that an Executive Magistrate must be allocated a
certain area to be covered where children are rescued. This
E 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
F 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:
G
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.
H Components of the scheme include networking with law
BACHPAN BACHAO ANDOLAN v. UNION OF INDIA & 387
ORS. [DALVEER BHANDARI, J.]
enforcement agencies, rescue operation, temporary shelter for A
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-
8
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.
c
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, D
etc. to children withdrawn from employment.
The Ministry of Women and Child Development has
actually in an outstanding report identified the shortcomings and
gaps in existing child protection institutions. The reasons for E
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 F
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. · G
Poor planning and coordination:
i) Poor implementation of existing laws and
legislations;
H
388 SUPREME COURT REPORTS [2011] 5 S.C.R.
A ii) Lack of linkages with essential lateral seNices for
children, for example, education, health, police,
judiciary, seNices for the disabled etc;
iii) No mapping has been done of the children in need
of care and protection or of the seNices available
B
for them at the district, city and state levels;
iv) Lack of coordination and convergence of
programmes/seNices;
c v) Weak supeNision, 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,
D as well as their families do not get any support and
seNices;
ii) Resources for child protection are meagre and their
utilization is extremely uneven across India;
E 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
F an enormous variety and number of problems
related to social dislocation, severe lack of shelter
and rampant poverty, most of which are not
addressed at all;
v) Lack of seNices addressing the issues like child
G
marriage, female foeticide, discrimination against
the girl child, etc;
vi) Little inteNentions for children affected by HIV/AIDs,
drug abuse, militancy, disasters (both manmade
H and natural), abused and exploited children and
BAeHPAN BAeHAO ANDOLAN v. UNION OF INDIA & 389
ORS. [DALVEER BHANDARI, J.]
children of vulnerable groups like commercial sex A
workers, prisoners, migrant population and other
socially vulnerable groups, etc;
vii) Little interventions for children with special needs,
particularly mentally challenged children. B
Poor infrastructure
i) Structures mandated by legislation are often
inadequate;
e
ii) Lack of institutional infrastructure to deal with child
protection;
iii) Inadequate number of ewes and JJBs.
iv) Existing ewes and JJBs not provided with D
requisite facilities for their efficient functioning,
resulting in delayed enquiries and disposal of
cases.
Inadequate human resources E
i) Inappropriate appointments to key child protection
services leading to inefficient and non-responsive
services;
ii) Lack of training and capacity building of personnel F
working in the child protection system;
iii) Inadequate sensitization and capacity1 building of
allied systems including police, judiciary, health
care professions, etc;
G
iv) Lack of proactive involvement of the voluntary
sectors in child protection service delivery by the
State UT Administrations; ·
v) Large number of vacancjes in existing child H
390 SUPREME COURT REPORTS (2011] 5 S.C.R.
A protection institutions.
Serious service gaps
i) Improper use of institution in contravention to
government guidelines;
B
ii) Lack of support services to families at risk making
children vulnerable;
iii) Overbearing focus on institutional (residential care)
c 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;
D
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
E
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;
F
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
G of child beggars or children used for begging;
x) Minimal use of non-institutional care options like
adoption, foster care and sponsorship to children
without home and family ties;
H
BACHPAN BACHAO ANDOLAN v. UNION OF INDIA 391
& ORS. [DALVEER BHANDARI, J.]
xi) No mechanism for child protection at community A
level or involvement of. communities and local
bodies in programmes and services;
xii) Serious services and infrastructure gaps leading to
few adoptions;
B
xiii) Cumbersome and time consuming adoption
services;
xiv) Lack of rehabilitation services for old children not
adopted through regular adoption processes; c
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.
D
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.
E
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
F
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 G
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 · H
392 SUPREME COURT REPORTS [2011) 5 S.C.R.
A community level. The guiding principles are neatly formulated
in this scheme. These must be implemented. The adoption
programme will be governed by the following guiding principles:
i. Best interest of the child is paramount;
B 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
c 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),
D 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
E 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
F
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
G consideration;
viii. Adoption process from the beginning to end shall
be completed in the shortest possible time;
ix. Monitoring, regulating and promoting the concept
H
BACHPAN BACHAO ANDOLAN v. UNION OF INDIA 393
& ORS. [DALVEER BHANDARI, J.J
and practice of ethical adoptions in the country A
should be ensured;
x. Agencies involved in the adoption process should
perform their duties in a transparent manner,
following rules of good governance and adhering to
B
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 c
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 D
of each state governmerit 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 E
c~ntral government in this regard.
60. The ICPS programmes are now brought under one
umbrella and are as follows:
a) Care, support and rehabilitation services through F
child-line;
b) Open shelters for children in need in urban/semi-
urban areas;
c) Family based non-institutional care through G
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- H
394 SUPREME \.OURT REPORTS [2011) 5 S.C.R.
A 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
B
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
C Committee either by itself or with the help of SAA, shall identify
suitable cases and order placement of the child in foster-care.
Once the Child Welfare Committee orders the placement of the
child in foster care, a copy of the order shall be marked to the
DCPS for release of funds and to SAA for follow up and
D 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
E 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
F 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
G 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
H 27th August, 2009 and the Act has been brought into force with
BACHPAN BACHAO ANDOLAN v. UNION OF INDIA & 395
ORS. [DALVEER BHANDARI, J.]
effect from 1st April, 2010. It may also be noted that Chapter 6 A
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 B
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. c
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 D
responsibility must be vast either on the Chief Secretary or a
Secretary lncharge of Children, Women and Family Welfare. It
would be open to the State Government in appropriate cases
to nominate a special officer for the said purpos~ not lower than
the rank of a Secretary to the State Government. Each State E
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 F
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 G
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. H
396 SUPREME COURT REPORTS [2011) 5 S.C.R.
A 68. We have carefully mentioned comprehensive
submissions and suggestions given by the learned Solicitor
General and others. We plan to deal with the problem of
children's exploitation systematically. In this order we are
limiting our directions regarding children working in the Indian
s 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
c 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
D 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
E
to take their children back to their homes, they may
be directed to do so after proper verification.
(iv) The respondents are directed to frame proper
scheme of rehabilitation of rescued children from
F 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.
G
69. This petition is directed to be listed for further
directions on 19th July, 2011.
R.P. Matter adjourned.
H
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