International Journal of Social Science and Economics Invention (IJSSEI)

Volume//01//Issue//01//June 2015

CHILD TRAFFICKING; A SOCIO-LEGAL PERSPECTIVE

Avinash Singh
MATS Law School, Raipur (Chhattisgarh) ( IV Year)
MATS University, MATS Tower, Pandri, Raipur- 492002
E-mail- mls.avinashsingh@gmail.com
Contact- 8878157003

ABSTRACT

CHILD TRAFFICKING: A SOCIO-LEGAL PERSPECTIVE

Women trafficking and human rights violations relate to the arena of continuous research that
has created concerns for the issues incidental to the said problem. One among the said incidental
issues that attracts the significant fraction of concern recount as the problem of child trafficking
over which a brief overlook will be drawn by the present paper. Domestic and international laws
are acting to protect the human rights violation through route of child trafficking for various
purposes. Current paper will emphasize over the child trafficking leading to sexual abuse of
children.

One the paper clears the legal protection being delegates by the home machinery for prevention
of child abuse and trafficking, the next step will be to focus upon those societal scenarios that
lead to this menace of trafficking. Formerly going in realm of sociological study and solution of
child trafficking, a shift will be stressed upon the legal requisite that is needed in the system to
filter the cause and operation of child trafficking network in India. Child trafficking is segregated
in an assortment of types depending upon their territorial operation hence generates a
transnational apprehension to tackle the issue. International law and its implementation are two
major areas that need to be revisited wherein the paper concludes that even in the presence of
sufficient laws with few awaited, the quandary of its implementation makes these laws lunatic of
which the ultimate sufferers are the children.

Keywords: Child Trafficking, Society, Human Rights, International Law, Implementation

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 International Journal of Social Science and Economics Invention (IJSSEI)
Volume//01//Issue//01//June 2015

CHILD TRAFFICKING: A SOCIO-LEGAL PERSPECTIVE

INTRODUCTION

Child trafficking that will remain moot subject of research in the present paper is a social
quandary that is extending its arms on the global level and is more particularly being a quandary
for the developing and underdeveloped nations. The reason and the problems that trafficking
procures if very stringently observed will clarify the issue and challenges that are lying ahead the
government and society to handle. There are several general problems that need to be addressed
and will be subsequently be focused upon in the paper but apart from reaching to solutions of the
general problems the region or country specific problem resolution scheme is also being well
scheduled in the paper. Trafficking may be of many types depending upon the subject matters
that is being part of the respective trafficking like human, animal, birds etc. but the present paper
limits its scope in and only child trafficking. Trafficking has a very wide interpretative potential
that includes men, women and children being subject to trafficking and hence the author shrinks
the scope of research area over the children only. Child trafficking is an issue that needs greater
concern not because of the nature of harm but because of the nature of victim being affected in
the present situation. One of the definition of the trafficking in human being definitional of the
words that speaks as: The recruitment, transportation, transfer, harbouring or receipt of persons,
by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of
deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of
payments or benefits to achieve the consent of a person having control over another person, for
the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the
prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or
practices similar to slavery, servitude or the removal of organs. This definition is traceable in
the Council of Europe Convention on Action against Trafficking in Human Beings that
considered trafficking as human rights violation and hence made provisions to end the problem
of trafficking vis--vis maintaining gender equality in the system.

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Trafficking is something that gets a mixed response from the society and here it creates a
quandary to resolute the problem of same. Trafficking is having an altered consequence of which
eventual response is well accepted and handled among a stratum of society. Present paper tries to
cover major issues and challenges that the society is facing in terms of child trafficking and
hence the paper outcomes with several suggestions that are indented to affect and successfully
change the present scenario. Constitution being the guiding document for any law in country
seeks more societal appreciation while implementing the same and therefore provisions and its
due implementation should also be done in accordance with the constitutional scheme. Paper also
lie down a structure that will present the constitutional backing of rights of the children against
the trafficking and then will in same flow also spotlight upon those directives that will clear the
obligatory situation of state to cope up with the problem of child trafficking. Present manuscript
more emphatically stresses to focus on Indian aspect of the trafficking that is the active problem
before the country and the shelling of the problem in a global color creates more problem as the
consequence to take cross border measures will be highly questionable that may sometime
captures negative eye on world community. The heterogeneous look of the problem of child
trafficking as mixed with sexual activities likes prostitution and turned into a booming
commercial industry have created further problems to tackle the situation and hence finding an
inclusive solution to it. After discussing with such matters functioning in and out of Indian
society, the author moves to the last analytical viewpoint over the international documents and
provisions related thereto that will lead to the ultimate consequence mirroring the original aspect
of child trafficking in the international arena. Trafficking is nonetheless a global phenomenon of
which victim list is starched across the globe and hence international organizations are working
with the mutual assistance of states to end the misery of trafficking but since the efforts are done
globally, the problem generators or the perpetrators are also working in an inclusive manner and
strategically evading from the traps that have been thrown periodically. These criminals or
people involved in trafficking are supposed to get more stringent actions against them by the
respective government but the likelihood of adverse is more opted in the present. Present
situation is so vigorous to handle that one cannot predict the future of endeavors that are
sequentially being implemented by the state governments and hence this paper while continue to
deal with international provisions with an overview and insight at several other aspects relating

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to the same problem. Government is coming with technologically advanced mechanism wherein
the online portal and online reporting of missing child to police station for reporting and finding
the missing child is one of the most innovative steps that is being implemented in present day but
remains unproductive in absence of its dissemination among the common public. The paper will
vehemently argue in raising the concern among public to support for such cause so as to make
the efforts howsoever small as effective one and also a societal support is needed for all other
future endeavors since the public is the only perpetrator and suffer in this whole trafficking saga.

1. CHILD AND TRAFFICKING: A CONSTITUTIONAL VIEWPOINT

Constitution of India also known as grund norm has influenced the legal scheme of our
country that could also be seen in while analyzing the laws relating to the child trafficking in
India. Child rights are one of the most precious rights that finding parallel place n the
constitution with all others rights given to the citizens or non-citizens. Except from the all other
general provisions, there are some additional protections that are endowed to the children placed
in the sacrosanct part III of the constitution that is details the fundamental rights to the citizens.
Article 23 of the Indian Constitution that reads as Prohibition of traffic in human beings and
forced labor:

(1) Traffic in human beings and beggar and other similar forms of forced labor are prohibited
and any contravention of this provision shall be an offence punishable in accordance with law

(2) Nothing in this article shall prevent the State from imposing compulsory service for public
purpose, and in imposing such service the State shall not make any discrimination on grounds
only of religion, race, caste or class or any of them is the only express fundamental right that
tries to protect the rights of the children among other human beings and hence creating a right
generating situation in the society that will be required to meet the need of weapon for fighting
with the social evil of trafficking. Once the prohibition of trafficking and forced labor is a
fundamental right of the citizen, the citizen gains power to enforce this right against the state and
state will be obligated to take an action whenever such act criminalized by constitution takes
place.

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Apart from said provision enshrined in Article 23, there are other fundamental rights that serve
the purpose to restrict the human trafficking as those cardinal among other fundamental righst
have approached to its widest interpretation that is known as right to life enshrined in Article
21 of the constitution. Apex court on many occasions have deployed an humanitarian approach
while interpreting rights under article 21 and hence the child trafficking matter would be on
limelight of inspection as it relates directly to the right of survival with other socio-economic
rights that are mandated for peaceful existence of any society. In case of Kharak Singh v. State
of Uttar Pradesh court cleared the life doesnt mean mere animal existence but a dignified
survival with the liberty in all aspects. Court took this view in accordance with an American
celebrated decision came in case of Munn v. Illinois where American Supreme Court while
interpretation of the term life have concluded with the following phrase that is still holding a
significant relevance in present society worded as Something more than mere animal existence.
The inhibition against its deprivation extends to all those limbs and faculties by which life is
enjoyed. The provision equally prohibits the mutilation of the body by the amputation of an arm
or leg, or the putting out of an eye, or the destruction of any other organ of the body through
which the soul communicates with the outer world.

Also the fundamental rights triangle being recognized in case of Maneka Gandhi v. Union of
India will also work in sync while resolving the problem of trafficking and holding its serious
nature to resolve the said issue. State is more obligated with more force to eradicate the problem
since it effects there significant constitutional principles of equality, freedom and life & liberty
preserved in Article 14, Article 19 and Article 21 respectively. Although constitution of India
also holds due protection to non-citizens as in Article 14, 21, 20, 25(1), 27 etc. that provide
power to protect the alien persons when they were being trafficked in India that evidence the
intention of constitution framers to protect all human beings irrespective of its place of birth and
this shows the globalized view of protection of children marked in Constitution of India.

After analysis on the fundamental rights based approach, now we will scrutinize the structure
that is out of Part III but still is given more importance while adhere any function in accordance
with Indian constitution that is Part IV of Constitution of India enshrining Directive Principle of
State Policies that are Social and Economic rights given to the citizens of India by way of
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directions provided therein for state that need to be followed while formulating policies of social
welfare. Significance of Part IV can be traced from the one among most landmark judgment of
Keshavananda Bharathi v. Union of India wherein court has developed situation of
harmonization between fundamental rights and directive principles while interpreting any
combating situation between fundamental rights and directive principles. Among other general
provisions of directive principles Article 39(e) and (f) bears more importance that any other
provisions for restricting child trafficking as Article 39(e) reads as: The State shall, in
particular, direct its policy towards securing that the health and strength of workers, men and
women, and the tender age of children are not abused and that citizens are not forced by
economic necessity to enter avocations unsuited to their age or strength and Article 39(f) reads
as The State shall, in particular, direct its policy towards securing that children are given
opportunities and facilities to develop in a healthy manner and in conditions of freedom and
dignity and that childhood and youth are protected against exploitation and against moral and
material abandonment. Both of the provisions of Article 39 clearly depicts the responsibility of
state toward securing the safety of children as especially additionally endowed on state for
facilitation of protective and development regime to the children.

Therefore the constitutional scheme mixed with fundamental rights and directive principles
clears the path for an stringent action of state to cope up with the issue of child trafficking and
hence making its presence rescind from society.

2-INDIAN SCENARIO OF CHILD TRAFFICKING: ISSUES AND CHALLENGES

Millennium development goals among which the foremost goal is to eradicate poverty is the
scheduled to be opted by the government according to sub-group report on 11the Five Year Plan
being published by Ministry of Women and Children . Millennium Development Goal Three also
recognizes that the trafficking is a major impediment to the development to the women and child
vis--vis adversely affects human rights of the affected parties.

Quantum of victims under Child Trafficking Protection Act is not bouncing very high comparing
it with the victim rate of other laws but still this data may be erroneous as many children that are
sold or purchased for the trafficking purpose may have procured as by trafficking them from any

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other territory of country. Data are also highly mistaken as kidnapping that is highest reported
victim rate counting 4464 victims in average between year 1999 to 2004 was separately kept
spaced out with victims of child trafficking holding a small quantum of 72 victims in average
between the same span of time i.e. between year 1999-2004. Even the Ministry of Home Affairs,
Government of India recognizes that 90% of total trafficking is within the country that is
afterward used for sexual exploitation. It is astonishing to mention that kidnapping leads to more
child trafficking than any other route but the data available in regard to child trafficking is
relatively very low just because the non addition of the kidnapping that leads to child trafficking.
This data gaffe will obliviously but most undesirable weaken the formulation of such laws and
prove them ineffective to work in the Indian scenario to combat with the child trafficking.
Immoral trafficking prevention Act is the guardian law for dealing with trafficking cases and
hence with the insufficient data and erroneous compilation of set of data will more harm that
gaining control over the trafficking. However the sex ratio gap in states may also lead to minor
cause of trafficking but this problem is again society generated that can be preserved by maintain
child sex ratio in states and hence stop killing the female child in state. In this way the report
shows the connection between female child killing and child trafficking that result as a matter of
concern for the government.

Author derives an adhesive co-relation between child trafficking and smuggling as both them
involve transmission of objects on territorial basis wherein both of them are prohibited by law.
Smuggling involves goods and other materials while trafficking particularly involves human
body that comes into commercial exposure after reaching to its consequence. Child trafficking is
the matter of greater concern because it possesses more harm to the victims as trafficking is more
profitable than smuggling and hence a stringent view is adopted for the eradication of the same.

This problem raises another issue that may have most compelling reason for continuation of
channel for the trafficking purpose. Children are being trafficked from state like Chhattisgarh,
Kolkata, Orissa etc. through middleman and are deployed in various field of working wherein
prostitution counts one of the major exploitation area. Several times it is observed that those who
are indulged in trafficking are not using the forceful means but contradictory to it, the families of
the children are willingly approving their child to get trafficked in lieu of monetary
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consideration. Probabilities are high that many times parents didnt know that the area of said
employment of their children will be sex industry where the children are sexually exploited to
earn money. This consensual manner of trafficking creates problem in tracking the offensive
event of trafficking and hence making it more complex to stop the child trafficking as child are
incapable to raise the concern against themselves being of a minor age and intellect comparing
with that of a major trafficked victim. Present situation of age gap can perfectly explain the
reason to put higher concern over the issue of child trafficking than any other form of trafficking.
One of the challenge that came along the way of child trafficking is sometime itself the children
stratum who in absence of basic necessities and in addict of ill habits organize groups
undertaking illegal means to feed their addiction that may extend to diverse number of habits like
alcohols, correction fluid, rubber cement, eraser marker, gasoline etc. Said challenge is an
oxymoron in terms of present efforts wherein one side we are combating to deal and solve the
issue of child trafficking and on other side children are themselves involved in encouraging these
social evils. The main flourishing resource is both the society as well as the paralytic policies of
government that have together played a crucial role in moving the children on path of inclusive
disaster.

CONCLUSION:

Thus the paper concludes with the observation that there might be several factors that are
working against the proper implementation of the laws made for tackling the child trafficking
issues but still the abundance of laws doesnt comes into way to restrict stretching the ambit of
the governmental authorities that will work in sync with the society to eradicate the problem of
child trafficking. Also there is need to differentiate between the in-house trafficking that may be
one of the major problem and can be easily restricted by way of local government machinery
unlike the cross-border trafficking that has comparatively higher complexities in its
implementation.

One among the suggestion is that the society must stand against is the problem of child
trafficking and due to higher perceptibility of health hazard and other reasons make the children
the vulnerable for any such exploitation. There are several conflicts of interest between the

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prostitution by consent and hence it creates a problem to trace the differentiation between normal
prostitution and prostitution involved trafficking but in case of children trafficking, it is very
easy to recognize the exploitation as child is incapable to give consent. Child trafficking can also
be restricted if children are provided with those essential amenities that are needed for sustain a
normal living condition that will lower the selling rate of children among poor families. There
are laws against the people involved in trafficking but still no express laws that especially
prosecutes the families that encourages and practices the child trafficking. There are laws that
may attract penalty for parent and relatives indulged in trafficking but a new smooth framework
will increase the deterrence among families and relative as it also counts a larger share in case of
trafficking.

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