CASE NAME: Vishal Jeet v. Union of India

CITATION: AIR 1990 SC 1412

CORAM: S. Ratnavel Pandian and K. Jayachandra Reddy, JJ.

BACKGROUND:

The petitioner, an advocate, filed a writ petition by way of public interest litigation under Article 32 of the Constitution of India, 1950 before the Hon’ble Supreme Court. The petition focuses on eradication of child trafficking and protection and rehabilitation of children of prostitutes. They are the most vulnerable targets to be taken to ‘flesh market’ and forcibly pushed into the ‘flesh trade.’

RELEVANT FACTS: The Petition was filed seeking issuance of directions to Central Bureau of Investigation 

  • to launch an investigation into those police officers whose authority includes Red Light districts, as well as Devadasi and Jogin traditions, and to take appropriate action against such erring officers and lawbreakers.
  • to relocate all inmates in red light zones, as well as those involved in the "flesh trade," to protective homes in their respective states, and to provide them with adequate medical care, housing, schooling, and training in various disciplines of life, in order to allow them to choose a more dignified way of life 
  • to place the children of prostitutes, other children found begging on the streets and girls forced into the ‘flesh trade’ in protective homes, and then to rehabilitation centres.

ISSUES: The issues for determination in the present petition are as follows:

  • Whether there is a proper implementation of existing law to eradicate child trafficking? 
  • Whether directions can be issued to the Central Bureau of Investigation to conduct enquiry against police officers and law breakers involved in human trafficking?

CONTENTIONS: The contentions of the petitioner to substantiate issue raised in the petition can be summarised as violation of rights and duties under the Constitution of India as

  • Teenage female children and girls are subjected to trafficking due to poverty
  • Young girls are forced into ‘flesh trade’ for money. iii. Trafficked children are inhumanely and brutally treated.
  • Devadasi system and Jogin Tradition is still prevailing in some parts of country.  
  • All of these is a gross violation of fundamental rights under national and international instruments related to human rights and protection of women and children. These trafficked children or those who forced into flesh trade should be rescued and rehabilitated.

VERDICT WITH REASONING:

The Hon’ble Supreme Court understood the immediate need to take preventive measures to fight social evil of child trafficking as even after numerous legislations to curb the same, there is no effective result. The court rejected the petitions request to direct CBI to conduct enquiry in the country related to such crime as it would be impossible and impracticable considering the extensive level of crime throughout the country. However, the Court directed the Central and State Governments to 

  • take immediate steps to implement existing laws in eradicating child prostitution.
  • Set up advisory committee to give suggestion on the measures to be taken in eradicating child prostitution and conduct social-welfare programmes to ensure rehabilitation of victims of such crimes. The committee can make suggestion related to devadasi system and Jogin tradition and give recommendations accordingly.
  • Set up well-established rehabilitative homes manned by well-qualified trained social workers, psychiatrists and doctors
  • Set up a committee at Union level to make suggestions regarding prevention of sexual exploitation of children.
  • Set up of a machinery to ensure proper implementation of suggestions put forth by the committees.

LAW POINTS:

  • Article 23 of the Constitution of India prohibits human trafficking and makes it a punishable offence.  
  • Article 32 of the Constitution of India gives the right to individuals to move to the Hon’ble Supreme Court to seek justice for protection of public interest.
  • Article 35 of the Constitution of India specifies that the power to make laws related to fundamental rights is with Parliament and not State Legislature.
  • Article 39 of the Constitution of India is one of the main directive principle of state policy. Clause (e) and (f) of this Article direct the State to implement policies to ensure that tender age of children is not abused and childhood and youth are not exploited.
  • Principle No. 9 of the Declaration of the Rights of the Child states that the child shall be protected against all forms of neglect, cruelty and exploitation. He shall not be the subject of traffic, in any form.
  • United Nations International Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others was signed by India in 1950. The convention makes prostitution punishable.
  • Section 13 and 15 of Juvenile Justice Act, 1986 empowers take care, protect and look into treatment, development and rehabilitation of neglected or delinquent juveniles.
  • Suppression of Immoral Traffic in Women and Girls Act, 1956 was enacted in pursuance of Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others with the objective to prevent commercialisation of trafficking of women and girls and to rescue the victims of such act.
  • Section 336- A and Section 336- B of Indian Penal Code, 1960 states that procuration of minor girl or importation of girl from foreign country, a punishable offence.
  • Section 372 of Indian Penal Code, 1960 makes selling or letting hire a minor for prostitution, a punishable offence.  

ANALYSIS:

The decision of Hon’ble Supreme Court recognises the seriousness of offences related to child trafficking for sexual exploitation. Along with the present petition, the petitioner has filed affidavits of 9 girls who claim to be living n the brothel houses. It highlights the causes of such trafficking as poverty, illiteracy, increased demand for children in the sex trade industry, etc. According to the UNDOC report,[1] trafficking of children may occur on community scale, often involving family members. Families in dire need may encourage their children to work and children may feel the pressure to economically contribute to the family, leaving them vulnerable to exploitative practices. It is observed that countries with lower GDP per capita typically detect more children than adults among detected victims of sexual exploitation compared to countries that record a higher GDP per capita. If we review the statistics of trafficking among children, girls aged between 14 and 17 years old appear to be particularly targeted.

For proper analysis, let’s look into the different laws to prevent such crimes against children against international and national level:-

International Instruments

International human rights instruments impose duty upon the States to respect and ensure respect for human rights law, including the duty to prevent and investigate violations, to take appropriate actions against the violators and to afford remedies and recovery to those who have been injured as a consequence of such violations. Nonetheless, as yet, few States have fulfilled their obligation to implement these commitments or to provide adequate human rights protection to trafficked persons. States have a responsibility to provide protection to trafficked persons pursuant to the Universal Declaration of Human Rights (UDHR) and through ratification or accession to numerous other international and regional instruments.

According to Articles 1 and 2 of the Convention for the Suppression of Traffic in Persons and of the Exploitation of the Prostitution of Others (the Trafficking Convention), India is obligated to punish any person who:

Article 1 - "(1) procures, entices or leads away, for the purpose of prostitution, another person, even with consent of that person;

(2) exploits the prostitution of another person, even with the consent of that person." Article 2 -“(1) Keeps or manages, or knowingly finances or takes part in the financing of a brothel;

(2) Knowingly lets or rents a building or other place or any part thereof for the purpose of the prostitution of others.”

In 2011, India ratified the United Nations Convention Against Transnational Organised Crimes, 2000, including its Protocol to Prevent, Suppress and Punish Trafficking in person. The Government of India has incorporated most of the standards of international law into its domestic law but it still needs improvement in order to comply with international conventions. However, the deficiency is with the effective implementation of the laws in places and not the law on paper.

National Instruments

In India, there are different legislation in pursuance of fundamental right granted under Article 23 of the Constitution of India. The Suppression of Immoral Traffic in Women and Girls Act, 1956 (SITA) and the Immoral Traffic in Persons (Prevention) Act of 1986 (ITPA), an amendment to SITA. ITPA supplemented by the Indian Penal Code (IPC) prohibits trafficking in human beings including children and lays down severe penalties. The Juvenile Justice Act, 1986 provides for care, protection, treatment and rehabilitation of neglected and delinquent juveniles including girls.

In 2015, the Ministry of Women and Child Development constituted a Committee to examine the feasibility of a comprehensive legislation on trafficking. Pursuance of report by the committee, the Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018[2] was introduced in Lok Sabha by the Minister of Women and Child Development, Ms. Maneka Gandhi on July 18, 2018 and passed in that House on July 26, 2018.  The Bill provides for the prevention, rescue, and rehabilitation of trafficked persons. Although, different authors consider the bill as ultravires of the constitution as the bill presumes that if the victim is a woman, a child, or a mentally/physically disabled person, the accused person committed the offence which is reasonable to the extent the accused in given opportunity to defend himself.

IMPLEMENTATION OF JUDGMENT:

In furtherance of the directions given by the Supreme Court, the Government of India set up a Central Advisory Committee (CAC) to advise on issues relating to trafficking for commercial sexual exploitation and held a meeting on 18th May 2011. The committee recommended to set up State Advisory Committees and establish Anti-Human Trafficking at district level. The Ujjawala Homes must be monitored to check the effectiveness of the scheme implemented to prevent trafficking. Last recommendation was to conduct regular studies to understand the pattern of trafficking so that necessary preventive steps can be according taken.

I agree with the coram view regarding eradicating exploitation of child. The directions issued by coram stands logical and balanced to systematically curb crimes against children specifically crimes related to sexual exploitation and trafficking. However, the delay in implementation is the main reason for continuously crime against children and it needs to be addressed now.

CONCLUSION:

Therefore, the decision of the Supreme Court in Vishal Jeet forms a foundation step to provide a better future to the children in India.  The rationale behind issuance of such directions seems appropriate as the problem of child trafficking cannot be curbed overnight. A proper plan is needed to eradicate the child trafficking and rehabilitation of the children of prostitutes. The internal organisation must work together to ensure that people involved in such crimes are exposed. 

Lastly, the right to life with dignity guaranteed under Article 21 of the Constitution can only be ensured if there is proper study and implementation of measures to eradicate such crimes. However, the delay in implementation of directions of the Hon’ble Supreme Court makes the decision vague to the extend of eradicating child trafficking in India. 


[2] https://prsindia.org/billtrack/the-trafficking-of-persons-prevention-protection-and-rehabilitation-bill2018#_edn3.,


About the Author: This Case Brief is prepared by Ananya Singh, law student at Tamil Nadu National Law University. She can be reached at ananyasingh_ug17@tnnlu.ac.in

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