Shafiq R Khan

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Relevant National and International Legislation on Trafficking/CSE

There are a number of national and inter national lawas that attempt to prevent and regulate trafficking of persons. In addition to these laws, the constitutions of India and the National Policy for children do mention the need to priorities children. Further, India is a signatory to the World Declaration on the survival, Protection and Devlopment of Children as well as the UN Convention on the Rights of the child. Following the commitment made at World summit, India has developed a National plan of Action for children in which most of the recommendations made by the world summit Action Plan are included.

This Section presents a summary of the various laws that have a bearing on the rescue and the rehabilitation of children subject to commercial sexual exploitation :

a. Constitution of India and National Laws

· Article 23 of the Constitution of India prohibits traffic in human beings and beggar and other forms of forced labour and states that any contravention of this provision shall be an offence punishable in accordance with law.

· Article 39 of the Constitution of India, a directive principle of State policy, directs the State to ensure that children are not abused or forced due to economic necessity to vocations unsuited to their age and strength and are given opportunities to develop in a healthy manner and that childhood and youth are protected against exploitation and against moral and material abandonment.

· The Immoral Trafficking (Prevention) Act,1956 (ITPA) focuses on the prevention of trafficking for immoral purpose. The act spells out comprehensive Provisions for rescue, Protection and corrective treatment for women in prostitution. The act also makes the procuring and inducing of a person for prostitution a punishable offence and enumerates penalties for keeping a brothel, living on the earning of a person in custody. The act also gives guidelines for the provision of special police officers to deal with the issues of trafficking and sexual exploitation.

· The Juvenile Justice (Care and Protection of children) act ensures uniform juvenile justice throughout the country. It was enacted to provide for care, Protection, treatment, development and rehabilitation of neglected or delinquent juveniles. Neglected and under threat of being killed, tortured or exposed for sexual or illegal acts as well as those prone to drug abuse and trafficking.

· The Indian penal code(IPC) contains several sections, which deal with sexual abuse including rape and unnatural sexual offence. It also deals with offences relating to kidnapping from lawful guardians, procuring minor girls, importation of girls from a foreign country and buying and selling minor girls for the purpose of prostitution and child pornography.

· The National plan of Action to Combat Trafficking and commercial sexual Exploitation of Women and Children(1998); The Plan of Action consists of action points regarding prevention, trafficking, awareness generation, healthcare services, education and child care, housing/shelter/civic amenities, economic empowerment, legal reforms and law enforcement, rescue and rehabilitation, institutional machinery, methodology

b. International policies and conventions

· Convention for the suppression of trafficking in persons and exploitation of prostitution of others, 1949: certain articles of this convention direct punishment to persons procuring, enticing and exploiting, keeping, managing, financing brothels for the purpose of prostitution (Art 2); Other sections focus on monitoring immigration and emigration laws to check for prostitution (Art 17); and on the repatriation of victims (Art 19).[1]

· Convention on Elimination of all forms of Discrimination Against women, 1979: Mentions trafficking and exploitation of women.

· United Nations convention on the Rights of the child(CRC) 1989: This convention reflects the belief that the best interests of the child must be protected in all societies and need to be taken into consideration in all matters regarding them. Specifically relevant articles in the CRC include those prohibiting illicit transfer and non return of children abroad(Art 1); recognizing and permitting safe and standardized system of adoption (art 1)recognizing and permitting safe and standardized system of adoption (Art 20) prevention of the child from forms of sexual abuse and exploitation (Art 34) prevention of abduction, sale and trafficking of children for any purpose (Art 35) taking measures to promote recovery and reintegration of child victims (Art 39).

· International labour Organization (ILO) 182: seeks protection of all children from slavery, trafficking, prostitution and pornography.

· UN Draft protocol to Prevent, suppress and punish Trafficking in persons(Supplementing the convention against trans-national organized crime), 2000.

· SAARC convention on preventing and combating Trafficking in women and Children for prostitution.

1.7 Definitions

Various concepts related to the issue of trafficking and commercial sexual exploitation of children are defined below.

a. Relevant Definitions in International and National Law

1. Child

“Child” shall mean any person under eighteen years of age”((d) Article 3, use of terms –the UN protocol to prevent ,suppress and punish trafficking in persons specially woman and children 2000)

“Child” means a person who has not completed the age of sixteen years “ [ITPA 1956 section 2(aa)].

2 Minor

“Minor” means a person who has completed the age of sixteen years ; but has not completed the age of eighteen years [ITPA1956section2(cb)]

3 Major

Major “major” means a person who has completed years “[ITPA 1956 Section 2 (ca )]

4 Commercial sexual exploitation

The Commercial Sexual exploitation of children is a a fundamental violation of children s rights .it comprises sexual abuse by the adult and remuneration in case or kind to the child or a third person or persons .the child is treated as a sexual object and as a commercial object . the commercial sexual exploitation of children constitutes a form of coercion and violence against exploitation of children constitutes a form of coercion and violence against children and amounts to forced labour and a contemporary form of slavery (the declaration and action for agenda of the world congress against commercial sexual exploitation of children )

There are three primary and interrelated of commercial sexual exploitation of children :prostitution ,and trafficking for sexual purposes. other forms of sexual exploitation of children include child tourism and early marriage .

For the purpose of data collection, commercial sexual exploitation ‘ was distinguished from sexual abuse by the fact some party achieves pecuniary advantage from the sexual activity . pecuniary advantage is undertood in the wider sense that includes cash and kind so long as there is some means of accounting in monetary terms .sexual activity is not limited to penetrative sex ,or even to genital sexual activities.

5. Prstitution

Prostitution means the sexual exploitation or abuse of person for commercial purposes and the expression “prostitute” shall be construed accordingly:” [ITPA, 1996, section 2(f)]

1. Child Pornography:

“Visual material depiction of a child engaged in explicit sexual conduct, either real or stimulated , or the lewd exhibition of genitals intended for the sexual gratification of the user , and involves the production , distribution and /or use of such material” (UNICEF,people pay to have sex with her…. An orientation Resource booklet’, 1999)

2. Trafficking :

Trafficking in persons’ shall mean :”the recruitment , transporation, transfer, harbouring or receipt persons by mens of the thereat or use of force or other forms of coercion, of abducation , of fraud of deception , of the abuse of power or of a postion of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of person having control over anther person , for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostition of other or other forms of sexual exploitation, forced lab our or services, slavery or practices, similar to slavery , servitude or the removal of organs;” (Article 3(a), the UN Protocol to prevent, suppress and punish Trafficking person,specially women and children ,2000).

“trafficking means the moving ,selling or buying of women and children for prostitution with in and out side a country for monetaty or other considerations with or without the consent of the of the person subjected to trafficking “(Artcle1(3), SARC Convention on Preventing and combating trafficking in women and children for prostitution).

8. Brothels

“brothels” includes any house room , conveyance or place or any portion of any house room, conveyance or place , which is used for purposes of sexual exploitation or abuse for the gain to another person or for the mutual gain of two or more prostitution ;”[ITPA, 1956, Section 2(a)]

9. Rehabilitation

“State parties shell take all appropriate measures to promote physical and psychological recovery and social integration of child victim of any from of neglect, exploitation, or abuse torture or any other from of cruel, inhumane or degrading treatment or punishment or armed conflicts. Such recovery and reintegration shall take place an environment which fosters the health, self respect and dignity of the child”- (UN Convention on the Rights of the Child (CRC) Art 39)

10. Seducing or soliciting for the purpose of prostitution

“Whoever, in any public place or within sight of, and in such manner as to be see nor heard from, any public place, whether from within any building or house or not

(a) by words, gestures, will full exposures of his person (whether by sitting by a window or on the balcony of a building or house or in any other way), or otherwise tempts or endeavors to tempt, or attracts or endeavors to attract the attention of, any person for the purpose of prostitution; or

(b) solicits or molests any person, or loiters or acts in such manner as to cause obstruction or annoyance to persons residing nearby or passing by such place or to offend against public decency for the purpose of prostitution,

shall be punishable on first conviction with imprisonment for a term which may extend to six months or with fine which many extend to five hundred rupees, or with ………………. “(ITPA, 1956, Section 8)

11. Protective Homes

Protective Home means an institution by whatever name called (Being an institution established or licensed as such under section 21), in witch persons (women and girl), who are in need of care and protection may be kept under this act (and where technically qualified person, equipment and other facilities have been provided) but does not include a shelter where female under trials may be kept in the pursuance of this act, or a corrective institution; [ITPA, 1956, secation 2(g)].

12. observation Home

Observation home means a home established by a state government or a voluntary organization and certified by that state government under section 8as an observation home for the juvenile in conflict with law.(juvenile justice (care and protaction of children) act, 2000)

b. operational definitions

1. Child affected by trafficking or CSE: for the purposes of this study, the children referred to are any personal below 18 years age, who has been subjected to commercial sexual exploitation and/or who is trafficked for the purpose of commercial sexual exploitation.

2. Source areas: identified areas from where children are repeatedly trafficked or transported, for the purpose of commercial sexual exploitation.

3. Chronic demand areas: areas where were the children are trafficked to or transported to for the purpose of commercial sexual exploitation. Theses are areas where there is a market or scope for buying sexual service.

4. Red light areas: Read light areas are the geographical area in a city or town where a number of brothels are available in clusters for the purpose of prostitution. These areas are well know by the public and other as places where prostitutes are available and offer sexual services.

5. Community: the community referred to in this study is the group of people residing in and around the area of the context in which the community is mentioned.

6. Transit point: points in the routes of trafficking where a person is kept for a short duration of their for the purpose of trafficking the personal further till the destination of demand point.

7. initiation into prostitution/breaking in: the first sexual contact for the purpose of prostitution of a new entrant or other advances made by the pimp and madams

V. TRAFFICKED MINORS/CHILDREN AND THE LAW

Although trafficking in children is one of the most heinous crimes both under the ITPA and under the ICP, evidence that child trafficking is taking place on a large scale and managing to escape the dragnet of the low. This is basically because of the fact that age test in seldom properly done and many and time a trafficked a child less than the age of 18 years is wrongly classified as an adult above the age of 18 years.

A trafficked child can be brought before the magistrate under two circumstances, viz.

1 when the raid/search/remove takes place by police action (section 15 of the ITPA).

2 the trafficked child can also be brought before the magistrate as an accused under sections 8(a) and 8(b) of the ITPA.

However, it must be noted that as per the juvenile justice (care and protection of children) act,2000(JJA), a child below the age of 18 year cannot be accused by the police under section 7 or 8 of the ITPA but can only be addressed as a child in need of care and protection under the JJA.

5.1 The Task of the Magistrate

The magistrate has a responsibility to ascertain/

Confirm that the person produced before her/him is a child by accurate medical examination. According to section 2(k) of the JJA, a “juvenile” or “child” means a person who has a not completed the eighteenth year of age. This definition is in harmony with the definition of a ‘minor’ in the TIPA, and hence there is no ambiguity.

Once the age teat as per section 17(2) of the (ITPA) establishes that the victim is a child/minor less then 18 years of age, The following action needs to be taken by the magistrate/judge.

1. the sessions court while framing charges against the trafficker must also take into consideration whether any offence under IPC,(sections 342,236,366A,366B,367, 368, 370,371, 272, 373, 375) is also made out and if so he/she must frame those charges in addition.

2. The child should be considered as a child in the need of the care and protaction under the JJA. The magistrate should order the handing over of the child to the appropriate state authority, which is the child welfare committee (CWC) to take care of the child. In states where the CWC has not yet been set up, the magistrate may order the handing over of the child Juvenile Welfare Board.

3. Such as child must not be charged with any offence under the ITPA or IPC (prerna vs. state of Maharashtra 2003(2) MHLJ 105).

Table 4: offences in respect of a minor or child

Sr.No

Law

Provisions

1.

Section 4(1)ITPA,

1956

Punishment for leaving on the earnings of prostitution. (1) any person over the age of eighteen years who knowingly lives wholly or in part, on the earnings of the prostitution of any other person shall be punishable witch imprisonment for a term which may extent to two years, or with the fine which may extent to one thousand rupees, or with both, and where such earning relate to the prostitution of a child or a minor, shall be punishable with imprisonment for a term of not less then seven years and not more then years.

2.

Section

5(1)ITPA,

1956

Procuring, inducing or working person for the sake of prostitution (1)any person who-

a. procure or attempts to progress a person whether with or without his/her consent, for the purpose of prostitution; or became the inmate of frequent

b. induces a person to go from any place with the intent that he/she may for the purpose of prostitution became the inmate of, or frequent a brothel; or

c. takes to attempts to take a person of causes a person to be taken, from once place to another with a view to his/her carrying on, of being brought up to carry on prostitution ; or

d. cases or induces a person to carry on prostitution;

shall be punishable on conviction with rigorous imprisonment for a term of not less them three years and not more then seven years and also with fine which may extent to two thousand rupees, and if any offence under this sub- section is committed against the will of any person, the punishment of imprisonment for a term a seven years shall extent to imprisonment for a term of fourteen years:

Provided that it the person in respect of whom an offence committed under this sub-section-

1. is a child, the punishment provided under this sub-section shall extend to rigorous imprisonment for a term of not less than seven years but may extend to life;and

2. is a minor, the punishment provided under this sub-section shall extend to rigorous imprisonment for a term of not less than seven years and not more than fourteen years.

3

Section6(2)

ITPA,1956

Where any person is found with a child in a brothel, it shall be presumed , unless the contrary is proved, that he has committed an offence under sub-section 6(1).

4.

Section 6(2A) ITPA,1996

Where a child or minor found in a brothel, is, on medical examination, detected to have been sexually abused, it shall be presumed unless the contrary is proved, that the child or minor has been detained for purposes of prostitution or, as the case may be, has been sexually exploited for commercial purposes.

5.

Section 7(1A) ITPA, 1956

Where an offence committed under sub-section (1) is in respect of a child or minor , the person committing the offence shall be punishable with imprisonment of either description for a team which not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine

Provided that the court may for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less then seven years.

6.

Section 23 JJA

Punishment for cruelty to juvenile or child- Whoever, having the actual charge of , or control over , a juvenile or the child, assaults , abandons ,exposes or willfully neglects the juvenile or procures him to be assaulted, abandoned , exposed or neglected in a likely to cause such juvenile or the child unnecessary metal or physical suffering shall be punishable with imprisonment for a term which may extend to six months or fine , or with both.

7.

Section 342 IPC

Wrongfully confining a person - whoever wrongfully confines any person shall be punished with imprisonment of either description for a term , which may extend to one year, or with fine , which may extend to one thousand rupees, or with both.

8.

Section 366 IPC

Kidnapping , abducting or inducing women to compel her marriage, etc.

Whoever kidnap or abducts any women with intent that she may be compelled, or knowing it to be likely that she will be compelled , to marry any person against her will, be forced or seduced forced or sedures, shall be punished with imprisonment of either description for a team which may extend to ten years , and shall also be liable to fine and whoever ,by means of criminal intimidation as defined in this code or of abuse of authority or any other method of compulsion ,induces any woman to go from any place with I intent that she may be or knowing that it is likely that she will be forced or seduced to illicit intercourse with another person shall be punishable as aforesaid .

9

Section

366 A IPC

PROCURATION OF MINOR GIRL

Whoever,by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be , or knowing that it is likely that she will be , forced or seduced to-illicit intercourse with anther person shall be punishable with imprisonment which may extend to ten years and shall also be liable to fine .

10.

Section 366B IPC

Importation of girl from foreign country

Whever imports into 161[India] from any country outside India 162[or from the State of Jammu and Kashmir] any girl under the age of twenty-one years with intent that she may be, or knowing it to be likely that she will be, forced or seduced to-illicit intercourse with another person , shell be punishable with imprisonment which may extent to ten years and shall also be liable to fine .

11.

Section 367 IPC

Kidnapping or abducting in order to subject person to grievous hurt, slavery. Etc.

Whoever kidnaps or abduct any person in order that such may be subject, or may be so disposed of as to be put in danger of being subject to grievous hurt, or slavery ,or to the unnatural lust of any person , or knowing it to be likely that such person will be so subjected or disposed of, shall be punished with imprisonment of either description for a term which may extend to ten years , and shall also be liable to fine

12.

Section 368 IPC

Wrongfully concealing or keeping in confinement, kidnapped or abducted person

Whoever ,knowing that any person has been kidnapped or has been abducted , wrongfully conceals or confines such person , shall be punished in the same manner as if he had kidnapped or abducted such person with the same intention or knowledge , or for the same purpose as that with or for witch he conceals or detains such person in confinement.

13.

Section 370IPC

BUYING OR DISPOSING OF ANY PERSON AS A STAVE

Whoever imports, exports, removes buys , sells or disposes of any person as a save , or accepts receives or detains against his will any person as a slave, shall be punished with imprisonment of either description for a term, which may extend to seven years , and shall also be liable to fine.

14.

Section 371 IPC

Habitual dealing in slaves

Whoever habitually imports, removes , buys, sells traffics or deals in slaves ,shall be punished with 152[ imprisonment for life], or with imprisonment of either description for a term not exceeding ten years , and shall also be liable to fine .

15.

Section 372 IPC

Selling minor for purposes of prostitution .etc.

Whoever sells, lets to hire, or otherwise disposes of any 164[person under the age if eighteen years with intent that such person shall at any age be employed or used for the purpose , or prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, or knowing it to be likely that such person will any age be] employed or used for any such purpose, shall be punished with imprisonment of either description for a term which may extend to ten years , and shall be liable to fine .

16.

Section 375 IPC

Buying minor for purposes of prostitution , etc.

Whoever buys, hires or otherwise obtains possession of any 164[ person under the age of eighteen years with intent that such person shall at any age be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, of knowing it to be likely that such person will at any age be] employed or used for any purpose, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

17.

Section 375 IPC

Rape

A men is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a women under circumstances falling under any of the six following description:-

First – Against her will.

Secondly – With out her consent .

Thirdly – with her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.

Fourthly – With her consent, when the man knows that he is not her husband , and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly- With her consent ,when at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or though another of any stupefying or unwholesome substance , she is unable to understand the nature and consequences of that to which she gives consent.

Sixthly- with or without her consent, when she is under sixteen years of age.

18.

Section 376 IPC

Punishment for rape

1. Whoever, except in the cases provided for by sub-section (2), commits repe shall be punished with imprisonment of either description for a term which shall not be less them seven years but which may be for life or for term which may extent to ten years and shall also be liable to fine unless he women raped is his own wife and is not under twelve years of age, in which cases , he shall be punished with imprisonment of either description for a term which may extend to two years or with fine both:

Provided that the court may, for adequate and special reasons to be mentioned in the judgment, imposes a sentence of imprisonment for a term of less than seven years.

2. whoever-

a. being a police officer commits rape-

1. within the limits of the police station to which he is appointed; or

2. in the premises of any station house whether or not situated in the police station to which he appointed ; or

3. on a women in his custody or in the custody of a police officer subordinate to him :or being ,a public servant ,takes advantage of is official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him; or

4Bingonthe management or on the staff of a jail , remand home or other place of custody established by or under any law for the time being in force of a woman ,s or children ,s institution takes advantage of his official position and commits rape on any inmate of such jail ,remand home ,place or institution ;or

1 Being ,on the management or on the staff of a hospital ,takes advantage of his official position and commits rape on a woman in that hospital ; or

2 Commits rape on a woman knowing her to the pregnant : or

3 Commits rape on a woman when she is under twelve years of age ;or

4 Commits gang rape ,

Shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine :

Provided that the Court may ,for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years .

5.2 Procedure to be followed by a Magistrate When the Victim is a Child

1. According to section 2(k) of the Juvenile justice (Care and Protection of Children) Act, 2000 (JJA), a juvenile’’ or “child”

means a person who has not completed eighteen years of age.

The JJA makes a clear distinction between “child conflict with law” and “child in need for care and protection”. According to section 2(1) of JJA, a “juvenile in conflict with law” means a juvenile who is alleged to have committed an offence.”

Section 2(d) (vi) of the JJA defines a child in need of care and protection as one who is being or is likely to be grossly abused, tortured or exploited for the purpose of sexual abuse or illegal actions.

ii. Further, according to Section 2(d) (viii) of the JJA, a child is in need of care and protection who is found vulnerable and is likely to be inducted in to drug abuse or is likely to be abused for unconscionable gains Section 2(d) (vii $ viii) of JJA.

iii. A juvenile girl found soliciting under Sections 8 (a) and (b) of the ITPA ought to be classified as a child in need of care and protection, rather than as a juvenile in conflict of law, as she has been exploited and abused, and need to be rehabilitated rather than accused and penalized .

iv. Section 7 (1) of the JJA lays down the procedure to be followed by a Magistrate not empowered under the Act . the section states “when any magistrate not empowered to exercise the power of a board under this Act is of the opinion that a person brought before him under any of the provisions of this Act (other than for the purpose of giving evidence ) .is a juvenile or a child , he shall with out any delay record such opinion and forward the juvenile of the child and the record of the proceeding to the competent authority having jurisdiction over the proceedings .

v. however ,when a child or minor is produced before the magistrate in relation to an offence committed under ITPA, the following steps shall be taken by the magistrate:

a. age test is mandatory

Whenever a trafficked child is produced before the magistrate, the magistrate must first arrange to have an age test conducted under section 17(2) of the ITPA.

Section 17(2)-“when the person is produced before the appropriate magistrate sub-section (5) of section 16, he shall, after giving her an opportunity of being heard, cause an inquiry to be made as to the correctness of the information received under sub-section (1) of section 16, the age, character and antecedents of the person and the suitability of her presents, guardian or husband for taking charge of her and the nature of the influence which the conditions in her home are likely to have on her if she sent home, and, for this purpose, he may direct a probation officer appointed under the probation of offenders act, 1958, to inquire into the above circumstances and into the personality of the person and the prospects of her rehabilitation,”

Similarly, section 49(1) of the JJA also provides for presumption and determination of age of the victim. The section states “where it appears to a competent authority that a person before it under any of the provision of this act (otherwise than for the purpose of giving evidence) is a juvenile or child, the competent authority shall make due inquiry as to the age of that person and for the purpose shall take such evidence as may be necessary (but not an affidavit) and shall record a finding whether the person is a juvenile or a child or not, starting his age as nearly as may be.”

b. Minor should be handed over to the

Competent Authority

If it is found that if the trafficked person is below eighteen years of age, the magistrate should immediately order the handing over of the minor to the competent authority, as stipulated under Section 7(1) of the JJA.

Further, Section 29(1) of the JJA defines Child Welfare Committee (CWCs). The Section empowers the State Government to constitute one or more CWCs in every district or group of district for exercising the powers and discharge the duties conferred on such committeesin relation to child in need of care and protection under this act.

Thus, the Magistrate should immediately order the handing over of the minor to the competent authority i.e, the cec. In states , where a cwc has not been constituded , the child may be handed over to the juvenile wefare board…

c. Minor trafficked victim should be classified as a “child in need of care and protection”.

Since in most cases , the child has been forced to engage in sexual activities, the Magistrate as per Station 2 (d) of the JJB shall classify a minor trafficked victim as “child in need of care and protection”. Rather than as a “ juvenile in conflict with low “ and deal with her accordingly[prema v State of Maharashtra 2003(2) Mh.L.J 105]

d. The magistrate may make an order for intermediate custody of minor under Sectionn 17(3) of the Immoral Traffic (Prevention) Act, 1956(ITPA.)

Any trafficked child or a minor who is removed or rescued by the police under Section 15 and 16 of the ITPA , must not be accused of any offence and should be treated as a “ child in need of care and protection” under the JJA

Section 17(3) of the ITPA EMPOWERS THE Magistrate to pass an order for intermediate custody of the trafficked minor or the child . section 17(3) of the ITPA states “ the Magistrate ,ay, while an inquiry is made into a case under sub Section (2) of section 17 of the ITPA , pass such order as s/he deems proper for the safe custody of the person :

Provided further that a person rescued under Section 16 of the ITPA is a child or minor , it shall be open to the Magistrate to place such child or minor in any institution established or recognized under any Children Act for the time being in force in any State for the safe custody of children :

Provided further that no person shall shall be kept in custody for this purpose for a period exceeding three weeks from the date of such an order, and no person shall be kept in the custody of a person likely to have a harmful influence over her”.

e. no joint proceeding of juvenile and person not a juvenile

“ section 18 juvenile justice (care and protection) Act, 20002- no joine proceeding of juvenile and person not a juvenile.

1. notwithstanding anything contained in Section 223 of the code of criminal procedure, 1973(2of 1947) or in any ither low for the time being in force , no juvenile shall be charged with or tried for any offence together with a person who is not a juvenile.

2. if a juvenile is accused of an offence for which under section 223 of the code of Criminal Procedure, 1974(2 of 1974 )r any other low for time being in force , such juvenile and any person who is not a juvenile would , but for the prohibition contained in sub-section (1), have been charged and tried together, the board taking cognizance of that offence shall direct separate trials of the juvenile and the other person.”

According to section 18 (1) of the juvenile justice (care and protection of children )Act, 2000 (JJA) a juvenile should not be charged with or tried for any offence together with a person who is not a juvenile . Further, Section 18 (2) of the JJA states that if a juvenile has been charged with or tried with an adults , then the board can take cognizance of that offence and direct separate tried of the juvenile and the other person .

f. Same lawyer should not represent both trafficker and trafficked minor

In order to prevent a travesty of justice, the same lawyer must not represent both the trafficker and the victim [prerna vs. State of Maharashtra, 2003(2) Mh.L.J.105].4

g. evidence of the child should be taken in-camera

When the evidence of the child/minor is required for the purpose prosecution of the trafficker, such evidence should be taken in-camera under Section 327 of the cr. P.C

h. child’s dignity should be maintained

At the state consultations, the participants expressed that the magistrate should ensure that the child is treated with dignity, and should maintain a decent Courtroom atmosphere. He should bear in mind that the child has already been traumatized and victimized and subjected to sexual abuse and should not permit any person to humiliate the child in open Court. The child’s fundamental right to dignity enshrined under Article 21 of the Constitution of India,

Hold always be protected.

I. child s best interest should be the priority

To protect the best interest of the child especially in trafficking cases the magistrate should be extra cautious while passing orders for safe custotayas there will be several orders for safe custody as there will be several well wishers “ eager to take back the child for prostitution . these may sometime include parents and other relatives . the magistrate should check their antecedents as prescribed under section 17 (2) of the IPTA and if the child refuses to go with the “will wishers the court should not grant custody of the child to them . in such a case , the magistrate under section 17(3) of the IPTA may place such a child or minor in any institu8tion established or recognized under any law pertaining to children in force in the state .

The supreme court has held that the right under Article21 means not just the right to physical survival but the right to live with human dignity and all that will go with it, namely, the bare necessities of life such as adequate nutrition , clothing , shelter and facilities for reading and writing (Francis Corallines Mullin vs. Territory of Delhi ,AIR 1981 sc 746).

5.3 Power of the child welfare committee in respect of a child in need of care and protection

i. committee is the sole authority to dispose of cases

“ section 31-(1) juvenile justice (Care and protection )Act 2000 – the committee shall have the final authority to dispose of case for the care , protection ,tradition development and rehabilitation of the children as well as to provide for their basics needs and protection of human right .

(2) where a committee has been constituted for any area, such Committee shall , notwithstanding anything contained in any other low for the time being in force but Act, have the power to deal exclusively with all proceedings under this Act relating to children in need of care and protection .

Thus, the Child Welfare Committee (CWC) is the final authority to disposes of the cases for the care , protection , treatment ,development and rehabilitation of children as well as to provide for their basic needs and protection of their right human rights.

1. Inquiry

“ section 33-(1) juvenile justice (Care and protection )Act 2000 – on receipt of a report under Section 32, the Committeeor any police officer or special juvenile police unit or the designated police officer shall hold an inquiry in the prescribed manner and the Committee , on its own or on the report form any person or agency as mentioned in sub –section (1) of section 32, may pass an order to send the child to the children’s home for speedy inquiry by a social worker or child welfare officer .”

(2) – The inquiry under this section shall be completed within four months of the receipt of the order or with in such shorter period as may be fixed by the committee:

Provided that the time for the submission of the inquiry report may be extended be extended by by period as the committee may, having regard to the circumstances and for the person recorded in writing, determine.

When a child in need of care of protection is produced before the committee, an inquiry is required to be held by the committee or any police officer or the special juvenile police unit or the designated police officer. The committee may pass an order to send the child to a children home for a speedy inquiry by a social worker or child welfare officer. [section 33(1) of the juvenile justice (care and protection) act, 2000 (JJA)]

Such inquiry should normally be competed within four months its commencement, unless such period is extended in special cases, after recording in it writing the reasons for such extension (section 33 (2) of the JJA].

iii. Power of rehabilitation

Section 33 (3) of the juvenile justice (care and protection act, 2000-after the completed of the inquiry if the committee 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 or him or till he attains the age of eighteen years.”

Upon completion of the inquiry, the committee may make an order an allow the child to remain in the children home or shelter home till suitable rehabilitation if found for him or till he attains the age of eighteen years. This will be applicable only when the committee is of the opinion that the child has no family or ostensible support.

5.4. Powers of the juvenile welfare board

In the states where Child Welfare Committee (CWC) has been constituted, the Juvenile Welfare Board has no competence to deal with cases of children who are in prostitution/ have been trafficked. Such children must be considered as children in need of care and protection. However, in states where the child welfare Committee (CWCs) have not been constituted, these matters may be referred to the Juvenile Welfare Board [(Prerna vs. state of Maharashtra 2003(2)

MHLJ105].

i welfare of the juvenile or child is the need of the day and the board should adopt a sensitive approach oriented outlook (Kamil vs. state of Utter Pradesh, 1994 Cri. L.J1491).

ii A juvenile rescued from a brothel under the immoral traffic (prevention) Act, 1956(ITPA) or found soliciting in a public place should be released only after an inquiry has been completed by the probation officer. [(Prerna vs. State of Maharashtra, 2003(2) Mh.L.J 105].)

iii inquiry and order passed by the board.

The board is normally required to complete its inquiry regarding the matter within four months of its commencement, unless such period is extended in special cases, after recording in writing the reasons for such extension [section 14 of the juvenile justice (care and protection) Act, 200 (JJA)].

Upon completion of its inquiry, the board may, if it is satisfied that the juvenile has committed an offence, pass on order in a accordance with sections 15 and 16 of the JJA.

Checklist for the magistrate when the trafficked victim is a child/minor

1. age determination – whenever a trafficked child victim is produced before the magistrate’s s/he must first order an age test to be conducted under section 17(2) of the immoral traffic (prevention) Act, 1956 (ITPA) this is critical because very often the trafficked child may actually be below 18 years but is declared in the age determination report as above 18 years, an inaccurate age determination can make a crucial difference in the conduct of the proceedings and can result in a miscarriage of justice according to the TIPA, trafficking of minors is a more heinous offence warranting more stringent punishment against the trafficker as per sections.4(1), 5(1), 6(2), 6(2A), and 7(1A) in cases, where the age determination test establishes that the victim is below 18 years of the age, the juvenile justice (care and protaction) Act 2000(JJA) would automatically apply, in all cases where the magistrate has any doubt regarding the age of the victim, especially victims fall within the age group of 18-21 years, s/he should be especially vigilant and summon the medical officer who conducted the test, and question him in detail to satisfy himself beyond any shadow of doubt that the accused is above the age of 18 years, check if a minor is booked under the ITPA and if so, all charges should be dropped and the minor should be treated as a child in need of care and protaction as per the JJA.

2. Ensure that a medical examination has been conducted in order to check for sexual abuse and /or rape.

3. Ensure that necessary counseling is provided to the victim.

4. Enquire who is the parent or guardian of the minor and whether the parent/guardian is responsible for the trafficking of the child. do not hand over custody to the child to the parent/guardian without involving the probation officer.

5. If necessary, make an order for the child’s intermediate custody in a safe place.

6. Hand over custody of the child to the Child Welfare Committee (CWC).

7. Check if the appropriate sections of the ICP, ITPA and JJA against of trafficker have been stated in the charge-sheet and refer the matter to the court of sessions for trail, for details, see Para 6.1.

8. Ensure that the evidence of the child is taken in-camera under section 327 of the Cr.P.C. during state consultations, the participants expressed that the court should arrange for translators if the child is from another state does not speak the local language.

9. Ensure that the court has a child-friendly and supportive atmosphere while taken the child’s evidence.

10. at the time of taking child’s evidence-

· Use a screen to avoid the trafficker from looking at the child and thereby product the child from getting intimidated or afraid during the submission of evidence.

· Lot only lady police in civil dress accompany the girl to the court.

11. Do not lady repatriation of the child for evidentiary purpose.

12. if the child has an objection to going back home, try to determine the reason behind the same and take a decision which will serve the best, try interest of the child rather then giving custody to claimers such as parents or relatives, the environment in the home itself might have resulted in the child being trafficked.



[1] Jose, vettekathil et al.

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