Bachpan Bachao Andolan vs. Union of India

Cituation: [2011] INSC 403
Court: Supreme Court of India
Bench: Dalveer Bhandari, A.K. Patnaik
Date of Judgment: Apr 18, 2011

Comment:

Introduction

This is a case concerning the violations, abuses and torture faced by the children who are detained in circuses. In this Bachpan Bachao Andolan which is an Indian movement filed public interest litigation under Article 32 of Constitution. Petitioner has filed this petition after coming in contact with many children those who are forcefully detained in circus. Hence, this case is concerned about the issues like abuses done to children like physical, mental and sexual abuse and violation of their rights.

Facts

  1. In this the petitioner came in contact with many children those who are forcefully detained in circuses and children their face various kinds of abuses and violations.
  2. The children are trafficked from poverty stricken parts of Nepal and India and forcefully made to stay and perform in circus shows where they are abused sexually, physically and emotionally and kept in inhuman conditions.
  3. Life of these children daily begins at dawn with their training combined with shouting abuses, physical torture and two biscuits and a cup of tea. After everyday shows and of lot of vulgar comments of the crowds, the young girls are then allowed to go back to their tents around midnight.
  4. Hence, after seeing this petitioner filed a Public Interest Litigation and issued writ under Article 32 of the Constitution in Supreme Court.
  5. The petition requested that the Court should issue orders or directions against the state, including: to frame appropriate guidelines and regulations  for persons engaged in circuses; to appoint special forces on the borders to prevent cross-border trafficking of children; to criminalize intra-state trafficking, bondage, forcible confinement, sexual harassment, and abuse of children; to empower the Child Welfare Committee under the Juvenile Justice (Care and Protection of Children) Act and  2000 to award compensation to child victims rescued from the circuses.

Issues involved

  • Whether the writ issued under Article 32 is maintainable or not?
  • Does the circuses violate the provisions of Child Labour (Prohibition and Regulation) Act, 1986?
  • Are Fundamental Rights of Children are infringed in this case?
  • Whether the demands made through writ by the petitioner is maintainable?
  • Are the International protocols and conventions on children gets violated?

Arguments

Here in this case arguments in favor of petitioner are talked upon in the whole judgment. Hence, the arguments in favor of petitioner are-

  1. Whether the writ issued under Article 32 is maintainable or not?

The writ of mandamus[1] filed here under Article 32 is maintainable as it is an order from a court to an inferior government official ordering the government official to properly fulfill their official duties or correct an abuse of discretion.

In this writ of mandamus is filed to  issue  orders or directions against the state, including: to frame appropriate guidelines and regulations  for persons engaged in circuses; to appoint special forces on the borders to prevent cross-border trafficking of children; to criminalize intra-state trafficking, bondage, forcible confinement, sexual harassment, and abuse of children; to empower the Child Welfare Committee under the Juvenile Justice (Care and Protection of Children) Act and  2000 to award compensation to child victims rescued from the circuses.

  1. Does the circuses violate the provisions of Child Labour (Prohibition and Regulation) Act,1986?

It is clearly mentioned in Child Labour (Prohibition and Regulation) Act, 1986-

Section 3[2]– Prohibition of employment of children in certain occupation and processes-

No child shall be employed or permitted to work in any of the occupations set forth in part A and part B of the schedule.

Part A of the schedule which contains occupation mention it in their (17) point that occupation of children to work in circus is not at all applicable.

The leading case in this context comes of M.C. Mehta vs. State of Tamilnadu[3] the children cannot be made to work under hazardous industry , mine or other works like that of circuses. This is also the case of public interest litigation made by eminent social worker M.C Mehta for children working in Firozabad.

  1. Are Fundamental Rights of Children are infringed in this case?

The fundamental rights which are getting infringed because of working in circus are-

  1. Article 21 ( Protection of Life and Personal Liberty)
  2. Article 14 (Equality before Law)
  3. Article 21A ( Right to Education)
  4. Article 23 ( Prohibition of Traffic in human beings and forced labour)
  5. Article 39 ( Certain principles of Policy to be followed by state regarding health, strength, opportunities and facilities)
  6. Article 45 ( Provision for early childhood care and education to children below the age of six years)
  7. Article 51A ( Fundamental Duties)

 

  1. Whether the demands made through writ by the petitioner is maintainable?

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.

  1. Issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents to 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.

  1. Issue a writ of mandamus or any other appropriate writ order or direction to appoint Special Forces in the borders to ensure action and to check on the cross border trafficking.

  1. Issue a writ of mandamus or any other writ order or direction applying the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000[4] 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 under section 31 of the Juvenile Justice Act.

  1. Issue a writ of mandamus or any other appropriate writ order or direction to empower child welfare committee under the Juvenile Justice (Care and 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.
  2. 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.
  3. Are the International protocols and conventions on children gets violated?

The children working in circus face various kinds of abuses, violations and are deprived of basic necessities of life. Things which violates International convention on rights of child[5] are following-

PART 1.

  1. Best Interest of child (3)
  2. Proper Implementation of Rights (4)
  3. Right to Life and Development(6)
  4. Non- separation from parents against their will(9)
  5. Right to express their opinions freely(12)
  6. Freedom of expression and  information(13)
  7. Privacy, honor and reputation(16)
  8. Protection of Child from abuses(19)
  9. Parentless children(20)
  10. Health(24)
  11. Recognition of Right to Education (28)
  12. Right to rest and leisure (31)
  13. Protection of Economic Exploitation(32)
  14. Protection from sexual exploitation(34)
  15. Protection from other forms of exploitation(36)
  16. Protection from torture and punishment (37)

Analysis

(A) Was the court’s decision appropriate?

This decision is appropriate because it protects the best of children and the order passed by the Dalveer Bhandari states that-

(I) In order to implement the fundamental right of the 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 from today.

(ii) The respondents are directed to conduct 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.

(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.

(v) We direct the Secretary of Ministry of Human Resources Development, Department of Women and Child Development to file a comprehensive affidavit of compliance within ten weeks. The decision takes into account Article 3 (best interests of the child); Article 32 (child labour, and the state’s obligation to set minimum wages for employment and regulate working conditions); Article 35 (prevention of the sale, trafficking and abduction of children); Article 37 (prohibition on deprivation of liberty); Article 19 (protection from abuse); Article 34.

(b) Does this decision change or influence the existing laws?

This decision changed and influenced the law-

  1. In order to implement the fundamental right of the 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 from today.
  2. The respondents are directed to frame proper scheme of rehabilitation of rescued children from circuses.
  3. We direct the Secretary of Ministry of Human Resources Development, Department of Women and Child Development to file a comprehensive affidavit of compliance within ten weeks.

Hence, this decision has made a positive contribution towards the concern of child abuse.

(c) Did the court adequately justify its reasoning?

Yes, the court justified its reasoning through the following points-

  1. Taking into account infringement of fundamental rights.
  2. Taking into account provisions of Juvenile Justice Board, 2000.
  3. Taking into account International convention on rights of child.
  4. By referring to UN Protocol.
  5. Reports of Human Resource Development, India.
  6. National child labour project.
  7. The Ministry of Child and Women Development.

By referring to following reports and provisions they justified their statement.

(D) What are the policy implications of this decision?

There are big policies made but the decision is correct and appropriate-

  • In order to implement the fundamental right of the 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 from today.
  • The respondents are directed to conduct 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.
  • 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.
  • The respondents are directed to frame proper scheme of rehabilitation of rescued children from circuses.
  • We direct the Secretary of Ministry of Human Resources Development, Department of Women and Child Development to file a comprehensive affidavit of compliance within ten weeks.

Conclusion

The substance of this decision is correct and appropriate. It takes into account -Article 3 (best interests of the child); Article 32 (child labour, and the state’s obligation to set minimum wages for employment and regulate working conditions); Article 35 (prevention of the sale, trafficking and abduction of children); Article 37 (prohibition on deprivation of liberty); Article 19 (protection from abuse); Article 34 (protection from sexual exploitation); and Article 39 (rehabilitative care for child victims of abuse).

This decision, however, fails to recognize the provisions of the Optional Protocol on the sale of children, child prostitution and child pornography, to which India is a signatory, regarding the state’s obligations to criminalize, investigate, and prevent certain acts of child exploitation.

[1] Indian Constitution. Article 32 & 226

[2]Child Labour (Prohibition and Regulation) Act, 1986; Section 3

[3] M.C. Mehta vs. State of Tamilnadu, AIR1997 SC699

[4] Juvenile justice act(care and protection ) act, 2000

[5] The International Convention on the rights of the child, 1989

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