# BACHPAN BACHAO ANDOLAN v. UNION OF INDIA & OTHERS

- **Citation:** [2011] 5 S.C.R. 353
- **Court:** Supreme Court of India
- **Decided:** 2011-04-18
- **Bench:** Dalveer Bhandari, A. K. Patnaik
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bachpan-bachao-andolan-v-union-of-india-others-27719
- **Pages:** 44

## Headnote

CHILD WELFARE:
A
B
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, it is directed:
f
.
(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

## Text

_Characters 0–39,193 of 76,124. This is a partial read: ask again with offset=39193 for what follows._

[2011] 5 S.C.R. 353
BACHPAN BACHAO ANDOLAN
v.
UNION OF INDIA & OTHERS
(Writ Petition (C) No. 51 of 2006)
APRIL 18, 2011
[DALVEER BHANDARI AND A. K. PATNAIK JJ.]
CHILD WELFARE:
A
B
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, it is directed:
f
.
(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;
(iv) The respondents are directed to frame proper
scheme of rehabilitation of rescued children from
circuses;
E
(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
A
B
356
SUPREME COURT REPORTS
(2011] 5 S.C.R.
Case Law Reference:
2001 ( 3 ) SCR 353
cited
para 11
CIVIL ORIGINAL JURISDICTION : Under Article 32 of the
Constitution of India.
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
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.
F
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.
H
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
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. Makeshift 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
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
D
· 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
B
c
D
E
F
G
H
Besides paying meagre salaries to the children, the
management of some circuses holds back the
salaries of the children saying that they would be
paid only to their parents when they visit them, which
rarely happens. Salary accounts are often
manipulated and the loss due to accidents or
mishaps is not compensated.
viii)
Bound by Contract
The child artists are brought to the circuses to be
contracted for 3 to 10 years and once the contract
is signed/agreed upon by the parents or guardians
of the children, these young ignorant children are
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
In the circus, their daily routine starts with practising
even before the sunrise (rigorous training session
initially) mostly accompanied with verbal and
physical abuse and harsh physical punishments at
times, for the slightest error or no error at all. From
afternoon onwards until midnight, they are on the
stage, performing and enthralling the audience with
their vivacity and wit. They <.;annot share their agony
and grievances or raise their voice against the
torturous life they are forced to lead. For them, there
is no education, no play, no recreation and their life
is confined to the circuses without any exposure to
the outside world. All this prohibits them from
knowing the other opportunities available, as they
are aware of and are exposed to just one aspect
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
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
B
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
A
B
c
D
E
366
SUPREME COURT REPORTS
[2011] 5 S.C.R.
4.
Violation of statutory provisions of law like
Employment of Children's Act, 1938, The Children
(Placing of Labour) Act, 1933, The Child Labour
(Prohibition and Regulation) Act, 1986, Minimum
Wages Act, 1976, The Prevention of Immoral Traffic
Act, Equal Remuneration Act, 1976 and Rules
made thereunder and the Bonded Labour System
(abolition) Act, 1976 read with rules made their
under, the Factories Act, 1948, Motor Transport
Workers Act, 1961 etc.
5.
Existing labour laws and legitimacy of contracts of
employment for children.
6.
The legitimacy of contracts of employment for
children and working conditions.
17. The petitioner has given innumerable instances in the
petition of abuse of children in the circu~es. All those instances
demonstrate under what horrible and inhumane conditions the
children have to perform in the circuses.
18. The experiences of the petitioner are only a scratch
on the surface and there are many children who are being
trafficked regularly into circuses. While it is not the case of the
petitioner that circuses should be completely banned and
prohibited, there is a strong need to regulate this as any other
F industry including ensuring safety gears and other measures as
are done in other countries.
G
H
19. The petitioner has filed the petition with the following
prayers:
1.
Issue a writ of mandamus or any other appropriate
writ, order or direction, directing the respondents to
frame appropriate guidelines for the persons
engaged in circuses;
2.
Issue a writ of mandamus or any other appropriate
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
writ order or direction to appoint special forces in
B
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:-
E
F
G
H
a.
12.6 million (Governmental sources) to 100
million (unofficial sources) stated to be child
labour;
b.
44,000 children are reported missing
annually, of which 11,000 get traced;
c.
About 200 girls and women enter prostitution
daily, of which 20% are below 15 years of
age.
2.
International conventions exist to punish and
suppress trafficking especially women and children.
(Refer: UN Protocol to Prevent, Suppress and
Punish Trafficking in Persons also referred as the
PALERMO Protocol on Trafficking). Trafficking is
now defined as an organized crime and a crime
against humanity. The convention being an
BACHPAN BACHAO ANDOLAN v. UNION OF INDIA &369
ORS. [DALVEER BHANDARI, J.]
3.
4.
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 .... ".
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.
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.
B
6.
The forms and purposes of child trafficking may be:-
·'
a.
Bonded labour;
b.
Domestic work;
c
c.
Agricultural labour;
d.
Employment in construction activity;
e.
Carpet industry;
D
f.
Garment industry
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 wellE
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
B
the child and due protection must be given to her/
him as a witness;
ii.
The detailed interview of the victim should be done
preferably by crisis intervention centres/members of
the Child Welfare Committee under the Juvenile
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
Iior at any other place co-managed by police any
E
NGO/CBO. Support persons for the child should be
contacted and in their absence, any civil society
group working with/for children or members of
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,
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
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.
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
E
F
G
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
H
Development;
BACHPAN BACHAO ANDOLAN v. UNION OF INDIA & 375
ORS. [DALVEER BHANDARI, J.]
(c)
Director of Health and Family Welfare;
(d)
Commissioner of Police of the State;
(e)
Two Psychiatrists to be nominated by the Indian
Psychiatric Society.
30. The State Government with the assistance of the said
committee by a transparent process will constitute committees
A
B
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.
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
enforcement of section 293 of the Penal Code. It is submitted
that a further research study must be undertaken on the efficacy
of the provisions of the Young Persons Harmful Publications
Act, 1956, Section 67 of the Information Technology Act, 2000
and Section 293 of the Penal Code.
33. The Transplantation of Human Organ Act, 1994 makes
removal of human organs without authority and commercial
dealing in human organs criminally liable.
D
E
F
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.