Child Labor Advocate Kailash Satyarthi on the Recent Landmark Indian Supreme Court Decision on Trafficking

With great pleasure, I share my joy and accomplishment with you. As I write to you, I am holding a copy of the landmark judgment of the Supreme Court of India that will have far reaching impact on the lives of millions of children. This historic judicial verdict was delivered on 10th May 2013 in response to a petition filed by my Indian organization Bachpan Bachao Andolan (BBA) which is the key partner of Global March Against Child Labor.

It is indeed a watershed moment not only in BBA’s three decade fight in restoring childhood but has also brought a fresh lease of hope for hundreds of thousands of missing children and their hapless parents, whose cries remained unheard due to the absence of legal protection and apathy of the enforcement machinery. Our argument that children do not disappear in thin air but go missing because of an organized nexus of traffickers and mafias has been finally upheld by the highest court of the land.

BBA's Kailash Satyarthi and Child Labor Coalition Co-Chair Sally Greenberg at last summer's international child labor confernce in Washington, D.C., organized by the Global March Against Child Labor.

India has a dubious distinction with one child going missing every ten minutes as per government records. Although the government admits that complaints for 90,654 missing children were received in 2011 but it was only 15,284 First Information Reports (FIRs) that were eventually registered by the police to investigate various crimes these children were victims of. This also was possible only because the parents had expressed their suspicion on someone.

The Supreme Court in its much awaited decision has ruled in for compulsory registration of all cases by police of missing children with the presumption that they are victims of kidnapping and trafficking; preparation of standard operation procedures in all Indian states to deal with such cases; appointment and training of Special Child Welfare Officers at every police station to deal with cases related to missing children; records related to all missing and traced children to be maintained by Ministry of Home Affairs and Police; and provisions for para-legal workers to be present at every Police station to assist the parents whose child maybe the victim of a crime.

The Honorable Court has finally defined missing children as “a person below eighteen years of age, whose whereabouts are not known to the parents, legal guardians and any other person, who may be legally entrusted with the custody of the child, whatever may be the circumstances/causes of disappearance. The child will be considered missing and in need of care and protection within the meaning of the later part of the Juvenile Act, until located and/or his/her safety/well being is established.”


This judgment is a great tribute to Chaman Lal (name changed) whose daughter had vanished all of a sudden from her village in Nithari barely 25 kilometres from New Delhi seven years ago. Before reaching out to me for help Chaman Lal cooled his heels off running from pillar to post for lodging a complaint in search of his daughter only to be shunned by the local police saying that she might have eloped with her boyfriend. This is an insulting and ruthless remark which is considered as a stigma in the Indian society that no father would ever like to hear about his daughter.

Chaman Lal did not stop at this and went on to explain that he was not the only one aggrieved. There were dozens of parents with the same tale of woe. BBA raised this issue with the media and the authorities but all in vain. In December 2006 when human remains of several children were recovered from an open gutter in the area, the entire nation was petrified and ashamed. Rather than beating our chests and wailing, we took this issue of missing children on a war footing and intensified our efforts in public, political and judicial domains.

In India where ‘Missing Children’ was not even a defined term our fight has been an uphill task. In the absence of any legislation, there was no help, no assistance, nowhere to go, no-one to turn to. We have been relentlessly arguing that most of the missing children are victims of trafficking, sold to work as bonded laborers, child prostitutes, as forced beggars, drug peddlers, etc. It has been reported that children are also sold for illicit trading of organs, illegal adoption, as child brides to Middle East with men nearly five times their age or are even forced to become child combatants.

Recently, two young boys were found to be held in bondage and were confined to work in an agricultural field in a village in Meerut. They were registered as missing children in Delhi. In a separate incident a group of 13 child beggars were rescued by BBA and Delhi Police. They had gone missing from Jodhpur. As a matter of fact, they were trafficked and trapped by criminal gangs who exploit children for forced beggary. Similarly, a 16-year-old girl was recovered from Ajmer. She was lured by some unscrupulous people into marrying a foreigner. Her parents lodged a complaint with the police in Delhi. In yet another case, BBA with the help of Delhi Police recovered five young girls from a village in Alwar, Rajasthan who were reported missing from Delhi. They had been kidnapped from a primary school and were sold to a nomadic tribe for prostitution. Obviously, one can’t find missing children wandering casually on the streets. They are victims of an organized crime, irrespective of the fact, whether their parents or the police admit it or not.

We are approached by hundreds of parents who see BBA as a ray of hope for their re-union with the missing child. Almost every day at work, I come across parents lamenting inconsolably about their children gone missing. To make matters worse the data furnished by government agencies is often misleading; therefore under the provisions of Right to Information Act, we undertook a rigorous exercise of seeking data related to missing children from every district of India. Upon compilation of the responses received from 20 states and 4 union territories (published in the book “Missing Children of India” – a pioneering study by Bachpan Bachao Andolan, 2011) the fact that surfaced was absolutely shocking. An alarming 117,480 children were reported missing between 2008 and 2010.

We have been fighting this battle for the missing children on all possible fronts. Be it creating awareness in the masses about the issue; sensitizing police and other law enforcement agencies to effectively deal with such cases or staging protests, demonstrations and marches right up to the Parliament of India so that our policy makers give in to the demand for a strong legislation for protecting and recovering the children gone missing.

One of the loudest voices that have resonated with ours is that of the parents of the missing children themselves. We transformed their pain and agony into strength and hope to trace their children back. In order to strengthen our intervention and expanding manifold our outreach to all those who actually mattered, BBA extensively engaged national and international media over the years for bringing alive the issue of missing children – which lay buried under the debris of weak or absent policies and inaction of the law enforcement agencies. Our campaign on wheels “Mukti Caravan” comprising of former child laborers spanned the length and breadth of Indian states where children go missing from or are trafficked. Our activists have traced many children braving all risks on their lives. Our unrelenting efforts of many years have eventually been paid off in the form of a major policy change in the country.

Additionally, the latest judgment of Supreme Court will further reinforce yet another significant legislative change – Criminal Law (Amendment) Act 2013 that was enacted earlier last month. Co-incidentally this change is also a stellar achievement of BBA. The Act has defined and criminalized all aspects of trafficking in persons, slavery, servitude, physical exploitation, etc.

In thousands of cases we could initiate prosecutions against errant employers only under the laws related to bonded labor, child labor and juvenile justice, but not against nefarious traffickers who were responsible for landing children into a living hell. From a scenario where India did not have any legal definition of trafficking, the country’s criminal justice system has taken a quantum leap by making provisions for stringent and deterrent punishments for traffickers which even extend to rigorous imprisonment for the remainder of the offender’s natural life. This legislation was based on recommendations of a high powered committee that was constituted by Government of India for amending the criminal laws. The committee took note of the submissions made by a team of most dedicated and astute lawyers of BBA and included them in its final report in detail.

In the backdrop of the brutal gang rape of the 23 year old paramedical student in New Delhi, it was a daunting task to convince the law makers for incorporating clauses related to trafficking in the criminal law with an argument that missing children, trafficking, sexual abuse including rape are intertwined issues.

Legislative changes cannot be steered without mobilizing the opinion of the policy makers. BBA reached out to every single Member of Parliament either though one on one meetings or customized correspondence. Additionally, we sought the support of civil society organizations from across the country to amplify our voice.

Both these pivotal pieces of legislation concerning missing children and trafficking, together are strong weapons to demolish the criminal nexus of traffickers, abductors, kidnappers, mafias and slave masters who thrive at the cost of innocent childhood.

I take this opportunity to express my heartfelt gratitude to you for all the moral, physical and intellectual support that you have extended to BBA in our long-standing struggle and count upon your guidance in future as well.

 

In solidarity,

Kailash Satyarthi

Founder, Bachpan Bachao Andolan

[Details about the changes brought about by the Supreme Court decision follow (from BBA’s web site):]

Supreme Court of India directs registration of over 75,000 cases of missing children

May 21, 2013, New Delhi
: The Hon’ble Supreme Court of India issued landmark directions for the protection of missing children and other child victims of crimes in the country. In a petition filed by Bachpan Bachan Andolan (BBA) on the issue of missing children and trafficking, a bench headed by Hon’ble Chief Justice of India Mr. Justice Altamas Kabir and comprising of Hon’ble Mr. Justice Vikramajit Sen and Hon’ble Mr. Justice Sharad Arvind Bobde issued the directions.

Accepting the contentions made by the petitioner BBA, the Hon’ble Supreme Court issued the following directions including:-

  • All cases of missing children in India to be registered as a cognizable offence (as First Information Report) and investigated.
  • In cases where First Information Reports have not been lodged at all and the child is still missing, an F.I.R. should be lodged within a month – this figure is 75,808 for the period 2009 – 2011 alone.
  • In all missing children cases, there will be a presumption of the crime of kidnapping or trafficking unless proven otherwise from investigation – this is a landmark precedent as for the first time of “presumption of crime” for vulnerable sections of society is recognised.
  • All complaints regarding children (for non cognizable offences), to be investigated after referring them to a magistrate.
  • Each police station should have, at least, one Police Officer, especially instructed and trained and designated as a Juvenile Welfare Officer to investigate crimes against children.
  • National Legal Services Authority (NALSA) to appoint para-legal volunteers, so that there is, at least, one para- legal volunteer, in shifts, in the police station to keep a watch over the manner in which the  complaints  regarding  missing  children  and other offences against children, are dealt with.
  • A computerized programme (website), which  would  create  a network between the Central Child Protection Unit as the Head  of  the Organization and all State  Child  Protection  Units,  District Child Protection Units, City  Child  Protection Units,  Block  Level  Child Protection Units,  all  Special  Juvenile  Police  Units,  all  Police stations,  all  Juvenile  Justice  Boards  and   all Child Welfare Committees, etc. to be created as a central data bank.   
  • Photographs of the recovered child to be put up on  the  website and  through the newspapers and even on the T.V. so that the parents of the missing child could locate their  missing child and recover him or her from the  custody  of  the  police.
  • A  Standard Operating Procedure (SoP) must be developed to handle the cases  of  missing  children and to invoke appropriate provisions of law where trafficking, child labour, abduction,  exploitation and similar issues are disclosed during investigation or after the recovery  of  the  child.
  • BBA to assist in developing the Standard Operating Procedure (SoP), and also, BBA to be the nodal agency for All India Legal Aid Cell on Child Rights, flagship scheme of NALSA to provide legal aid to any child in need of care and protection in the country.
  • A missing child has been defined as, “a person below eighteen years of age, whose whereabouts are not known to  the parents, legal guardians and any other person, who may be legally entrusted with the custody of the child, whatever may be the circumstances/causes of disappearance. The child will be considered missing and in need of care and protection within the meaning of the later part of the Juvenile Act, until located and/or his/her safety/well being is established.”
  • Even after recovery of the missing child, the police  shall  carry  out  further investigation  to  see  whether  there  is  an  involvement  of any trafficking in the procedure by which the child went missing.
  • The State authorities shall arrange for adequate Shelter Homes to be provided for missing children, who are  recovered and do not have any place to go to within 3 months. 

Arguing on the behalf of petitioner Bachpan Bachan Andolan, Mr. H.S. Phoolka, Senior Advocate said “Every hour 10 children go missing. Out of these only one case is registered and investigated. There is no hope for the poor parents whose children go missing”.

BBA had under taken a pioneering research for three years on the issue of missing children, following which this writ petition (Writ Petition Civil 75/ 2012 – Bachpan Bachao Andolan vs Union of India and Others) has been filed.

As per official government data, in India, during the period from 2009 to 2011 number of children that have gone missing are 2, 36, 014 and out of them 75,808 are still untraced. However, only 34,899 FIRs have been registered in all. These directions from Supreme Court will come as a relief to those hundreds of thousands of parents whose children have been kidnapped and are still untraced without any assistance from law enforcement authorities.

Mr. Kailash Satyarthi, Founder, BBA said “It is a watershed moment not only in our three decade fight in restoring childhood but has also brought a fresh lease of hope for hundreds of thousands of missing children and their hapless parents, whose cries remained unheard due to the absence of legal protection and apathy of enforcement machinery. Our argument that children do not disappear in thin air but go missing because of an organized nexus of traffickers and mafias, has been finally upheld by the highest court of the land today”.

Mr. R. S. Chaurasia, Chairperson, BBA added that, “BBA will rigorously follow the enforcement of this landmark judgment and extends its support to the government in this regard”.

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