Trafficking Prevention Bill vs Juvenile Justice Act: Critical analysis

Trafficking Prevention of Bill vs Juvenile Justice Act

Written By: Nikita Mandal

Introduction:

The Children Act 1960 introduced the sex-based definition of the child in the realm of juvenile justice in India for the first time. 16 years was considered to be the right cut-off age for the purpose of juvenile justice in light of what had been done in other countries.

In that act Section, 2 of the act says “child” means a boy who has not attained the age of 16years or a girl who has not attained the age of 18 years. In this act, there are two categories of children. Neglected children and delinquent children have been included. According to JJ 1986, the word “child’ is not defined but instead the word “juvenile” is used.

“Juvenile” means a boy who has not attained the age of or a girl who has not attained the age of 18 years. The definition of “juvenile” given herein is verbatim the same as what has been given for a child in the Children Act 1960. But the Dictionary meaning of the juvenile is a person physiologically immature or underdeveloped characteristic of children.

The Juvenile Justice (Care and Protection of Children) Act 2015 adopted a similar sex-based definition of a juvenile without further explanation. The JJ (C&P) Act 2000 has modified the age to 18, not because of such perceived unconstitutionality in the definition but to bring it in accordance with the definition of the child in the UN Convention on the Rights of the child. Now the new Act so-called Juvenile Justice (Care and Protection of Children) Act 2015 it replaced the old Act.

Definition of Trafficking:

The Bill defines trafficking to mean: (i) recruitment, (ii) transportation, (iii) harbouring, (iv) transfer, or (v) receipt of a person for exploitation, by using certain means. These means are the use of threat, force, abduction, fraud, deception, abuse of power, or inducement. Exploitation includes physical or sexual exploitation, slavery, or forced removal of organs.

Aggravated Trafficking:

The Bill also classifies certain purposes of trafficking as ‘aggravated’ forms of trafficking. These include trafficking for the purposes of (i) forced labor, (ii) bearing children, (iii) inducing early sexual maturity by administering chemical substances or hormones, or (iv) begging. The punishment for aggravated trafficking is higher than for simple trafficking.

Rescue and Investigation: The Bill sets up various authorities at the district, state, and national levels for the rescue of trafficked persons and investigation of offenses.

At the district level, the state government will appoint anti-trafficking police officers and constitute Anti-Trafficking Units for one or more districts to rescue persons and investigate offences. Rescued persons will be produced before a Magistrate or Child Welfare Committee (in case of child victims). The authorities are required to close the investigation of the offence within a period of 90 days from the date of registration of the FIR. The functions of the district authorities will be monitored by a District Police Nodal Officer, to be appointed by the state government.

At the state level, the state government will appoint a nodal office to (i) combat trafficking in the state, (ii) monitor the functioning of district anti-trafficking officers, and (iii) coordinate and monitor the inter-state and trans-border transfer of victims, witnesses, evidence, and offenders. The District Police Nodal Office will report to the state nodal officer.

At the national level, the central government will constitute a National Anti-Trafficking Bureau, which may take over the investigation of cases referred to it by two or more states.

Protection and rehabilitation:

The Bill requires the central or state government to set up Protection Homes, to provide shelter, food, counselling, and medical services to victims. Further, the central or state government will maintain Rehabilitation Homes in each district, to provide long-term rehabilitation to the victims. The Bill requires the central and state governments to set up anti-trafficking committees at the district, state, and national levels to ensure the rehabilitation of victims.

Once the district anti-trafficking authorities rescue a person, they are required to inform the district anti-trafficking committee about the rescue operations. The committee will then provide interim relief and rehabilitation services to the rescued persons. The district committee will also: (i) pass directions to Protection and Rehabilitation Homes to ensure protection, rehabilitation and restoration of victims, and (ii) facilitate inter-state repatriation of victims subjected to bonded labour.

At the state level, the anti-trafficking committee is responsible for: (i) arranging training and sensitization of personnel, and (ii) providing assistance and inputs for prevention of offences, especially ones having inter-state ramifications or features of an organized crime.

At the national level, the anti-trafficking committee is responsible for: (i) ensuring relief and rehabilitation to victims through concerned ministries and statutory bodies, (ii) seeking reports from appropriate government, and state and district anti-trafficking committees on quality of services and functioning of Homes, and (iii) monitoring the Rehabilitation Fund.

Rehabilitation of victims will not be dependent on criminal proceedings being initiated against the accused, or the outcome of the proceedings. The central government will also create a Rehabilitation Fund, which will be used to set up Protection and Rehabilitation Homes.

Preventive Measures:

The district and state anti-trafficking committees will undertake measures to protect and prevent vulnerable persons from being trafficked. These measures include: (i) facilitating the implementation of livelihood and educational programs for vulnerable communities, (ii) facilitating the implementation of various government programs and schemes for prevention of trafficking, and (iii) developing a law and order framework to ensure prevention of trafficking.

Special Courts:

The Bill provides for setting up designated courts in each district, which will seek to complete a trial of trafficking cases within a year.

Penalties:

The Bill specifies various penalties. Key penalties are specified in Table 2. All offences are cognizable (i.e. police officers can arrest without a warrant) and non-bailable. Note that if a person is found guilty under the Bill and also under any other law, the punishment which is higher will apply.

Juvenile Justice Act:

Juvenile Justice (Care and Protection of Children) Act 2015 has come into force and repeals the Juvenile Justice (Care and Protection of Children) Act, 2000. Juvenile Justice (Care and Protection of Children) Act 2015 was passed by Lok Sabha on 7th May 2015; was passed by Rajya Sabha on 22nd December 2015 and received Presidential assent on 31st December 2015.

Juvenile Justice (Care and Protection of Children) Act 2015 provides for strengthened provisions for both children in need of care and protection and children in conflict with the law. Some of the key provisions include: change in nomenclature from ‘juvenile’ to ‘child’ or ‘child in conflict with law’, across the Act to remove the negative connotation associated with the word “juvenile”; inclusion of several new definitions such as orphaned, abandoned and surrendered children; and petty, serious and heinous offences committed by children; clarity in powers, function and responsibilities of Juvenile Justice Board (JJB) and Child Welfare Committee (CWC); clear timelines for an inquiry by Juvenile Justice Board (JJB); special provisions for heinous offences committed by children above the age of sixteen years; a separate new chapter on Adoption to streamline adoption of orphan, abandoned and surrendered children; inclusion of new offences committed against children; and mandatory registration of Child Care Institutions.

Under Section 15, special provisions have been made to tackle child offenders committing heinous offences in the age group of 16-18 years. The Juvenile Justice Board is given the option to transfer cases of heinous offences by such children to a Children’s Court (Court of Session) after conducting the preliminary assessment. The provisions provide for placing children in a ‘place of safety’ both during and after the trial till they attain the age of 21 years after which an evaluation of the child shall be conducted by the Children’s Court. After the evaluation, the child is either released on probation and if the child is not reformed then the child will be sent to jail for the remaining term. The law will act as a deterrent for child offenders committing heinous offences such as rape and murder and will protect the rights of the victim.

Juvenile Justice (Care and Protection of Children) Act, 2015

The Government even after facing strong opposition and condemnation from various sections of the Society passed the Juvenile Justice act 2015, which will not allow children in the 16-18 years to be tried as adults if they commit heinous crimes. The bill which was pending in Parliament where the government despite lacking a majority, managed to get it passed. The amendments were prepared in the backdrop of public outcry over the Delhi gang-rape case of 2012 in which a juvenile accused received a lighter punishment because of his age.

Apart from the hue and cry from society against the act, several members in Lok Sabha also opposed the controversial amendments that provide for treating juveniles between the age of 16-18 years on par with adults for crimes such as rape. It is necessary to understand that rehabilitation and not retribution should be the policy and therefore it is necessary to examine the provisions of the Act carefully to assess its possible impact on society.

Features:

1 . Definition of ‘child in need of care and protection’ expanded:

The definition as per the new Act now also includes a child who is found working in contravention of labour laws, at imminent risk of marriage before attaining the lawful age for the same or who resides with such a person who has or had threatened to injure, exploit, abuse or neglect the child or violate any other law or whose parents or guardians are unfit to take care of him.

2. Child Welfare Committee (CWC) is no longer the final authority in cases of children in need of care and protection:

The District Magistrate (hereinafter, the DM) shall be the grievance redressal authority for the CWC, and anybody connected with the child may file a petition before the DM, who shall consider and pass appropriate orders.

3. Procedure for inquiry:

The CWC shall now conduct an inquiry of any child produced before it, as opposed to children for whom production reports are received. The procedure now includes orphaned and surrendered children as well.

4. An extensive definition of ‘adoption’ provided:

An extensive definition of adoption has now been provided and child’s rights have been recognized.

Juvenile Justice and Constitution of India:

The Constitution of India is considered the fundamental law of India. Constitution provides rights and duties of citizens. It also provides provision for the working of the government machinery. Constitution in Part III has provided Fundamental Rights for its citizens in the same manner in its Part IV it has provided Directive Principles of State Policies (DPSP) which acts as general guidelines in framing government policies. Constitution has provided some basic rights and provisions especially for the welfare of children. Like: –

Right to free and compulsory elementary education for all the children under the age of 6 to 14 years. (Article 21A)

Right to be protected from any hazardous employment under the age of fourteen age. (Article 24)

Right to be protected from being abused in any form by an adult. (Article 39(e)).

Right to be protected from human trafficking and forced bonded labour system. ( Article (Article 39)

Right to be provided with good nutrition and proper standard of living. (Article 47)

Article 15(3) of the Constitution of India provides special powers to State to make any special laws for the upliftment and the betterment of children and women.

Therefore, the lawmakers while drafting the Juvenile Act of, 2015 have considered all the necessary provisions laid down by the Constitution so that child’s rights are protected in all possible ways.

This is for the same reason that Chapter IV of the Act lays down the provisions for the betterment of the juveniles and has focused on the Reformation and Rehabilitation of Juveniles in all the possible circumstances.

Analysis of Notable Amendments:

Any child that found committing any crime will now be sent for a preliminary assessment for a period of three months, up from the earlier one month.

Clarification is added that the preliminary assessment is not a trial, but to assess the child’s capacity to commit the crime.

The Act will allow a Juvenile Justice Board, which would include psychologists and sociologists, to decide whether a Juvenile criminal in the age group of 16-18 years should e tried as an adult or not.

A new clause on fair trial is added, under which the assessment will look into the special needs of the child, under the tenet of a fair trial under a child- friendly atmosphere.

The Child will not suffer from any disqualification that arises from any conviction under the Act.

The records of any conviction will be destroyed after the expiry period of the appeal except in the case of heinous crimes.

Biological Parents giving up children for adoption will be given three months to rethink their decision instead of existing one month.

This Act introduces foster care in India.

The aftercare of the child in institutional care will not be restricted to only one time.

Any child leaving institutional care can now receive financial support for more than one time.

Disabled children will be give precedence inter- state adoption.

Abandoned Children, found by the childcare facilities will be kept for 60 days before being given up for adoption or foster care instead of existing b30 days.

Any child who has been abandoned by biological parents due to unavoidable circumstances will not be considered to be willfully giving up the child.

In acting on an appeal against an order passed against the child, the board will now take help of experienced psychologists and medical specialists.

There will be now proper training of special juvenile unit in the police force.

Analysis of Bill:

The Bill creates a law for investigation of all types of trafficking, and rescue, protection and rehabilitation of trafficked victims.

The Bill provides for the establishment of investigation and rehabilitation authorities at the district, state and national level. Anti-Trafficking Units will be established to rescue victims and investigate cases of trafficking. Rehabilitation Committees will provide care and rehabilitation to the rescued victims.

The Bill classifies certain purposes of trafficking as ‘aggravated’ forms of trafficking. These include trafficking for forced labour, bearing children, begging, or for inducing early sexual maturity. Aggravated trafficking attracts a higher punishment.

The Bill sets out penalties for several offences connected with trafficking. In most cases, the penalties set out are higher than the punishment provided under prevailing laws.

Certain forms of trafficking specified in the Bill (like forced labour and sexual exploitation) are also covered by existing laws. Some provisions of the Bill are different from provisions for similar circumstances in such laws. As these laws are not being repealed, there may be uncertainty in the implementation of the Bill.

The Bill punishes an owner or lessor of a premise if he knowingly allows trafficking to be carried out on the premise. Under the Bill, the owner or lessor is presumed to have knowledge of the offence, unless they can prove otherwise. This provision may violate Article 21 of the Constitution.

The Bill provides immunity to a victim only if he commits an offence punishable with imprisonment of more than ten years and not for lesser offences. The high threshold may defeat the purpose for providing immunity.

The Bill provides for punishment of persons who distribute or publish material which may lead to trafficking. It is unclear as to how it will be determined if the act is likely to result in trafficking.

The Bill classifies certain forms of trafficking as ‘aggravated’, which attract a higher punishment than other forms. Therefore, the punishment for some of the aggravated offences such as begging is higher than the punishment for some other offences such as slavery.

Case Laws:

Vishal Jeet VS Union of India

This writ petition under Article 32 of the Constitution of India at the instance of an Advocate was filed by way of a Public Interest Litigation seeking issuance of certain directions, to look into issues of Red Light areas and forced prostitution from a law enforcement perspective; to rescue victims of commercial sexual exploitation and provide them with proper medical aid, shelter, education, and training in various disciplines of life so as to enable them to choose a more dignified way of life; and to look into issues pertaining to the dedication of young girls as Devadasi and Join.

The petition brought out the fact that poor parents on account of acute poverty were selling their children and young girls hoping that their children would be engaged only in household duties or manual labour. However, pimps – brokers – keepers either purchase or kidnap them by deceitful means and unjustly and forcibly inveigle them into ‘flesh trade’.

The Supreme Court (SC) held that this matter is one of great importance warranting a comprehensive and searching analysis and requiring a humanistic rather than a purely legalistic approach from different angles. The questions involved cause considerable anxiety to the Court in reaching a satisfactory solution in eradicating such sexual exploitation of children. The court stated that this malady is not only a social but also a socio-economic problem and, therefore, the measures to be taken in that regard should be more preventive rather than punitive.

The SC examined the Constitutional provisions pertaining to the right against exploitation; traffic in human beings and rights of children; principles enumerated by the Declaration of the Rights of the Child, 1959.

Conclusion:

Time is needed to reform the way our juvenile justice system works. Juvenile Justice (Child Care and Protection) Act, 2015. Enabling children to be judged as adults and their punishment effectively destroys their lives in such a way that they are not even given a chance to correct themselves for the mistakes they have made as innocent children. Justice in India has always been reformist in the sense that it continues to try to bring criminals back into society, not as a creative element.

Changes in the law on the age of adolescents have been introduced in the fear that the rising crime rate by adolescents will hinder the growth of society. This baseless legislature has taken a tough stance for law enforcement citizens. Adolescents work for only a small fraction of the total crime in society and this number has not increased over the years.

Thus, the focus should not be on more stringent laws rather on the proper application of existing laws. Instead of making a fuss of the people, the government should have defined its responsibilities and tackled the growing juvenile structure. While it cannot be disputed that the incidence of heinous crimes against children is on the rise, the solution is not to imprison these children, but to educate and rehabilitate them.

Keywords: Trafficking Prevention Bill, Trafficking Prevention Bill 2021, Trafficking Prevention Bill in India, Upcoming Trafficking Prevention Bill

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