Taming the Monsters

A serious call is needed for stringent penalties that would demolish the idea, in the minds of criminals, of indulging in child trafficking for sexual exploitation. Since even the longest of imprisonments are not creating an absolute deterrence, there is a need for even more severe penalties—perhaps even the death penalty. Perpetrators of these crimes are often serial offenders. To begin with, in cases where the victim children are voiceless—like infants or toddlers—when they are completely innocent, have no discretion, no power, no voice, and hardly any understanding, imposing capital punishment on the accused ought to be considered.

While the argument that keeping culprits alive and imprisoned is worse punishment may exist, the need for a stronger curb, widespread sensitisation, and the eradication of such inhuman individuals from our planet is imperative. Imagine any of us going through this as children, without even being able to express ourselves. Therefore, we need laws that completely knock down the very idea of a sex trade involving children.

The Government of India has attached a high degree of seriousness to the prevention and countering of human trafficking crimes. When it comes to children, the issue has been dealt with quite seriously and sensitively. There has been significant development of laws in this area, along with calls for even more stringent legal measures.

As per current laws, Section 96 of the Bharatiya Nyaya Sanhita, 2023 (BNS) deals with the procuration of a child; Section 97 deals with kidnapping or abducting a child under ten years of age with intent to steal from their person; Section 98 concerns the selling of a child for purposes of prostitution, etc.; and Section 99 pertains to buying a child for such purposes. Section 143 of the BNS provides for human trafficking, while Section 144 deals with the exploitation of a trafficked person—specifically, Section 144(1) deals with the sexual exploitation of trafficked children. In addition, Section 139 provides punishment for kidnapping or maiming a child for the purpose of begging, and Section 141 prescribes punishment for the importation of a girl or boy from a foreign country for illicit sexual exploitation.

Many of these provisions were present in the Indian Penal Code (IPC) as well, but the BNS has replaced and expanded them—an overdue and necessary reform. Trafficking is also prohibited under the Constitution of India under Article 23(1).

The Immoral Traffic (Prevention) Act, 1956 (ITPA) was promulgated for the prevention of trafficking and combating commercial sexual exploitation. The Immoral Traffic Prevention Act, formerly known as the Suppression of Immoral Traffic in Women and Girls Act (SITA), was revised and renamed in 1986. In 1956, SITA was enacted in response to India’s signing of the International Convention on the Prevention of Immoral Trafficking in 1950.

The Protection of Children from Sexual Offences Act, 2012 (POCSO), regarding child sexual abuse laws in India, was enacted as part of India’s child protection policies. It is an Act to protect children from offences of sexual assault, sexual harassment, and pornography. It also provides for the establishment of Special Courts for the trial of such offences and for matters connected thereto.

There are other laws as well that may be attracted, depending on the nature of the offence. India has also signed the UN Convention against Transnational Organised Crime (UNTOC) and its three Protocols. One of the protocols is to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children.

Even more stringent penalties need to be added in cases proved beyond all doubt—i.e., without an iota of it. As per one report, a Chinese court upheld the death sentence for a woman who trafficked more than a dozen children in the 1990s. This exemplifies how a child trafficker is a threat to many innocent lives. Florida, too, has floated a bill for capital felony charges against offenders indulging in sex trafficking of children below a stipulated age, or of persons who are mentally incapacitated.

There is also a need to strengthen the child welfare system and prevent sexual exploitation before it begins. Many times, culprits could be those who were themselves victims of sexual violence. Therefore, the right guidance, education, economic and social strategies to tackle frustration, and the eradication of evil mindsets—coupled with deterrent penalties and awareness of the laws—are urgently needed.

The writer is a practising Advocate in the Supreme Court and High Court of Delhi. Views expressed are personal