|CITATION||(2011) 5 SCC 1|
|COURT||Supreme Court of India|
|JUDGES/CORAM||Justice DalveerBhandari and Justice A.K. Patnaik|
|DATE OF JUDGEMENT||18.04.2011|
This is a case concerning the violations, abuses and torture faced by the children who are detained in circuses. In this case, Bachpan Bachao Andolan, which is an Indian movement, filed a Public Interest Litigation (or PIL) under Article 32 of Constitution of India. Petitioner filed this petition after coming in contact with many children who were forcefully detained in circus. Hence, this case is concerned about the issues like child abuse and more specifically, physical, mental and sexual abuse and violation of their rights.
The facts of the case are as follows: In this case the petitioner came in contact with many children those who are forcefully detained in circuses and children there face various kinds of abuses and violations.
The children were trafficked from poverty stricken parts of Nepal and India and forcefully made to stay and perform in circus shows where they were abused sexually, physically and emotionally and kept in inhumane conditions. Life of these children daily began 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.
Hence, after seeing this petitioner filed a Public Interest Litigation under Article 32 of the Constitution before the Supreme Court. 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.
The main issues in the case were:
- Whether or not the PIL under Article 32 was maintainable.
- Do the circuses violate the provisions of Child Labour (Prohibition and Regulation) Act, 1986.
- Whether or not Fundamental Rights of children were infringed in this case.
- Whether or not the demands made by the petitioner were maintainable.
- Whether or not the International protocols and conventions on children were violated.
Contention of the petitioner
The arguments in favour of petitioner were:
- The writ of mandamus filed under Article 32 was maintainable as it was an order from a court to an inferior government official ordering the government official to properly fulfil their official duties or correct an abuse of discretion. In this, writ of mandamus was filed to issue orders or directions against the state.
- It is clearly mentioned in Child Labour (Prohibition and Regulation) Act, 1986-
Section 3- 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 fundamental rights which were infringed because of working in circus:
- Article 21 ( Protection of Life and Personal Liberty)
- Article 14 (Equality before Law)
- Article 21A ( Right to Education)
- Article 23 ( Prohibition of Traffic in human beings and forced labour)
- Article 39 ( Certain principles of Policy to be followed by state regarding health, strength, opportunities and facilities)
- Article 45 ( Provision for early childhood care and education to children below the age of six years)
- Article 51A ( Fundamental Duties)
Summary of court decision and judgement
From the submissions of both parties, the Apex Court came to the conclusion that the Government of India was fully aware about the problems of children working in circuses. The Court went on to issuing a set of directions with regards to children working in Indian circuses.
This decision is appropriate because it protects the best of children and the order passed by the Court stated that:
“(i) In order to implement the fundamental right of the children under Article 21 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.”
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) of the Convention on the Rights of the Child.
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.