Twelve-year-old Mandira Singh was rescued by the police from VIP Hotel in Calcutta in 2006. She was kept in a welfare home in Madhyamgram. In 2007 the Calcutta High Court returned the girl to her foster parents even though a report by the Child Welfare Committee (CWC), a body set up under the Juvenile Justice (Care and Protection of Children) Act, said that the girl ran the risk of being “retrafficked or subjected to physical abuse” at home.
Puja Chauhan, 16, who was rescued along with her two-month-old son, too was sent back to her mother. This despite the fact that the CWC had cautioned that the girl was likely to be trafficked again.
Mandira and Puja are not isolated examples. Lawyers, NGOs and the police working for the rehabilitation of minors rescued from traffickers or brothels say that under the JJ Act, they have to be sent back to their parents or guardians. And often, this is done even if the child welfare authorities fear that they may be pushed back to the dark alleys from where they were rescued in the first place.
“It is a strange situation. There is no way to ensure that these children don’t go back into that murky world,” says lawyer Tarun Mukherjee of Calcutta’s Bankshall Court who has dealt with many such cases. According to Mukherjee, countless rescued minor girls are sent back to their “legal guardians” without proper verification of the latter’s claims.
Indeed, if parents — or those posing as parents — want to take back their daughters and push them back to prostitution, there is not much that the courts can do. All that the parents or the legal guardians need to prove in court is that they are the bona fide guardians of the child and that the child is willing to go back to them. They also to have to state that the minor would not be engaged in the flesh trade.
However, given that in India documents can be forged, or bought, “it is virtually impossible for a judge to check the authenticity of each and every document presented before the court,” says Jayanta Narayan Chatterjee, lawyer, Calcutta High Court. “The provisions under the Juvenile Justice Act have been made to ensure the safety of a child, but the judge cannot go to each and every house to verify if the persons claiming to be the legal guardians are genuine or not. They have to rely on the reports of the investigating agency.”
Non-government organisations (NGOs) working in the field of child rights say that traffickers are making good use of the loopholes in the law. “The CWC and children’s home authorities should also be consulted when the court decides to hand over a minor girl to her legal guardian,” says Aloka Mitra, chairperson, Women’s Interlink Foundation. Mitra had to hand over at least two girls from her children’s welfare home in Calcutta in the past few years.
Agrees Biju C. Mathew, director, International Justice Mission, Calcutta, a human rights agency headquartered in the US, “Nowhere in the Juvenile Justice Act and the Immoral Traffic (Prevention) Act is it explicitly stated that if the home study report says it is unsafe, the child should not be released to an unsafe environment. The act needs to define home study and make it mandatory for judges to give it due importance,” he says.
Adds Shanta Sinha, former chairperson of the National Commission for Protection of Child’s Rights (NCPCR), “It is the duty of the CWC and the police to verify the guardianship of a minor. The act should not compromise the child’s right. We need to revisit the existing laws that leave children unprotected.”
Often, the child may be in danger even if she says she wants to go back to her guardians, who may, in reality, be pimps. “Children are emotionally attached to their guardians, no matter who they are. So they are often influenced,” says Dilip Bose, coordinator, Childline, an NGO working for children’s welfare in Calcutta.
When a child is rescued, there should be more communication with her, feels Nina Nayak, member, NCPCR. “The guardians often invoke habeas corpus, saying they did not know where the child was. The authenticity of such statements should be verified. Besides, after a trafficked child is returned to her guardians, the courts should direct them to submit monthly reports on how the child is doing to the CWC,” stresses Nayak.
Minati Adhikary, chairperson, CWC, Calcutta, insists that during her tenure at least, no child has been returned to unsafe conditions. “We ensure a proper home study report and take the girl’s statement into account,” says Adhikary.
Experts say that it is not that the JJ Act is grossly inadequate. The problem is that the entire system, from the prosecution to the judges, needs to be sensitised to the needs of trafficked children. “The whole system, including the public prosecutors, should be sensitised,” says Sarbari Bhattacharya, officer in charge, anti-human trafficking unit, CID. She too feels that home study reports should be prepared by a court-appointed probationary officer for authenticity.
Another problem is that though the law says that rescued children have to be presented before a CWC member within 24 hours, and only then can they be sent to a welfare home, the CWC sits in office only on three days a week. Even though there is a provision to present the children at a member’s residence, most CWC members refuse to allow it. This often puts law enforcement authorities in a fix. Unable to get CWC clearance, they are forced to keep the children in private NGOs rather than in government shelters.
As for returning a trafficked child to his or her legal guardians — even if that environment is potentially unsafe — some argue that this is essentially fair. “Who says a sex worker can’t look after the welfare of her child? Who is to decide that? What’s the guarantee that NGOs don’t indulge in trafficking,” demands a resident of Sonagachi, Calcutta’s red light district, who has fought cases to restore minors to their guardians in the area.
The social welfare department of the government of West Bengal, which oversees the work of the CWCs and the various homes, is also supposed to keep an eye on the restoration of trafficked children. But more often than not, they fail to do it, rues Bhattacharya. “When these little girls come and ask ‘Aunty, what’s going to happen to me?’ I really have no answer,” says Bhattacharya helplessly.
(The names of the victims have been changed to protect their identities.)