This article has been written by Oishika Banerji, from Amity Law School, Amity University, Kolkata. This is an exhaustive article that deals with the fate of the children born in brothels explained with a legal perspective.
A section of the society that has always been out of recognition and discussion are the prostitutes. We highlight them as a red-light area, but the major highlight as to development, safety, and medical assistance is lacking for them completely on our part. It is not that we do not have legislation to govern them, it is that the legislations are never put to usage so that they can benefit from the same. This is a kind of profession which other sections of the society least think about as there comes along a preconceived thought that brothels are always associated with something bad and against the norms of the society. This vulnerable section of the society consists of children as well who are born without an identity. Recognition of these children is necessary to safeguard their future from being added to the list of prostitutes that are already existing. The fact that nobody ever visited these areas except those from the NGOs or government officials, make this section unknown to the larger world.
Although the profession is not wrong as just like other professions this is also practice for sustaining life, it can be supposedly advised to not include children in the same for they are unaware of the larger story their mothers are associated with. The children born out of brothels are similar to all other children, but the former lacks opportunities and advice which the latter possess. The legislation that is already in existence does lay down how the children born out of brothels can be made to feel secure and have a normal upbringing, but laws and society can work if both coexist with each other. The mere existence of law becomes worthless when society fails to adopt and apply the same.
Around the world, there are millions of children who have different upbringing compared to others because of the environment they are born into. Children are held to be the future of the nation and therefore the necessity of protecting these children should be adopted and looked after. This can be carried out by application of legal support in the form of legislation, statutes to give identification to these children and help them lead a good, normal life without much negativity.
How growing up in brothels look like
Whenever a child grows up, he or she is surrounded by a family, an environment to live freely, dream freely, play, learn and develop without much hurdle or obstruction, for they have parents to guide them. Children born in brothels lack certain things that are a part of a normal childhood. Possibly because of the past of the children, they fail to be having a normal childhood. The mothers of these children prefer not to reveal the father’s name most of the time. Therefore the child in the growing years views the world only from his or her perspective without much guidance. The environment in which the children grow is an environment of brothels itself. A boy or a girl in the brothel will come across children of similar backgrounds which makes no difference, for each one of them who suffer, is because of their birth in such a place. Very few of them could reach out to the outside world with the help of social workers and government officials to pursue education and subsequently their dreams.
Several surveys that have been conducted or are being conducted concerning the children of brothels reveals that all such children have dreams which are caged. Several foreign officials had access to the red-light areas in India, where children were interviewed as to how their lives are. What was revealed from most of the interviews was that they are provided with help in the form of food and education by NGOs weekly and most of them gather because of the food that is provided. Interest in learning is difficult to develop among the children in the brothels for the environment they belong to and are associated with. NGOs all across the country have been working towards making the lives of these children normal by providing them scope and opportunities as well. But issues that surround the brothels affect the children born in them the most.
Every child in this brothel wishes to be heard and be taken care of for they know not what the term normal symbolises as the environment they are in is normal for them. Gender discrimination is another social issue associated with this section of society as well. Few of the children have access to school and education whereas the majority are forced to follow their mother’s profession if they are girls. The mothers hardly are able to look after their children for they remain associated with their profession. This makes it easier for the children to grow up in the wrong way getting associated with more illegalities in society. Many of them get addicted to drugs which affect their entire life. Lack of guidance and education force these children to adopt fraudulent activities which later makes them prone to committing crimes in the society.
There have also been cases where the child worked as manual labour for sustaining his life. On the contrary, the government is trying several ways to implement the legislation named The Child Labour Act, 1986 in order to remove child labour completely from the nation. Our country guarantees fundamental rights to each and every citizen in the nation which is inclusive of children. Right to Education Act,2009 was enacted by the Indian Parliament under the broad meaning of the right to life under Article 21-A of the Indian Constitution to provide with compulsory education to children ranging from the age of 6 to 14 years.
Therefore it is the fundamental right of every child guaranteed from their very birth to get access to free and compulsory education. Children born out of brothels are restricted from such rights that are provided to them like all other children. Further, the very right to life and personal liberty guaranteed by Article 21 of the Constitution of India is inclusive of:
Right to live with human dignity free from exploitation: It was in the case of Bandhua Mukti Morcha v. Union of India where the Supreme Court of India was with the observation that right to life is inclusive of the right to life with human dignity which is free of any kind of exploitation. Life in brothels can never be idealised as one which is free from exploitation. But children born out of the same can be provided with this right to ensure a good life in the present as well as in future.
Right to shelter: In the case of Chameli Singh v State of Uttar Pradesh the court held that right to shelter is a guaranteed fundamental right provided under the right to life as laid down in Article 21 of the Constitution and the right is enforceable as well. This right is absent for the children born in brothels for the economic background they are born and brought up in. Most of them grow up on their own in the environment their mother’s work in and survive in that environment itself. Providing the right to shelter is, therefore, an essential requirement for these children.
Right to health and medical assistance: Children born in brothels lack proper care and medical guidance that is necessary for every child. Immunization is required in order to avoid a child from falling sick frequently. Vaccinations are provided to develop resistance from any kind of virus effect or infection. Medicines and basic aid remain absent for the children born in brothels for it is difficult to reach out to them. If also they are provided with it, the fact that they know not how to utilize the same will make everything a waste. Children living in these areas are prone to several diseases and infections due to the environment. Therefore monthly checkups are beneficial for these children. Along with the children, the women working in brothels require medical aid as well to avoid getting affected by deadly diseases like AIDS, STD(Sexually Transmitted Diseases), etc. It was in the case of Consumer Education and Research Centre v. Union of India, where the Supreme Court held that right to health and medical assistance is a part of the right to life under Article 21 of the Constitution and therefore is necessary to be provided with.
Right against inhuman treatment: Often the children of the brothels are subjected to child trafficking, beggary, sex trafficking due to the lack of care, guidance and education. These children are made to carry out inhuman activities which make their lives miserable in this world. The children have no way out of the situation they are made to be in. In several cases, it has been observed that the mother is forced by the situation to sell her children in return for money. The world within the brothel is dark, and one that people outside the same cannot imagine. Right to life therefore also includes the right against inhuman treatment especially in case of children.
Further, the Constitution of India separately guarantees right against exploitation under Article 23 and Article 24 with the latter focusing on the exploitation of children. Under Article 24, the Constitution lays down that forced labour by children will be considered as an offence under this provision. Children are made to work in mines, factories, restaurants which can even turn out to be hazardous for them. The most important goal of any law governing the children in a brothel is to not create any situation that will force the children to join the profession of prostitution and spend the rest of their lives in the brothel itself. Cases exist where the children born in brothels were been discussed above are subject to child labour as a means of sustaining life. Children who are supposed to go to school and secure education, are made to work as labourers for money. This means exploitation creates an environment for the children where they can no more think of doing something else for themselves and like other children of the society.
The inference that can be drawn from the above scenarios is that the children who are born and brought up in brothels suffer mentally, psychologically and socially in their life. The one right that children in brothels get in excess is freedom. But this freedom if not brought under regulation can give shape to a different scenario altogether. So many stories associated with these children remain unheard and ignored. Possibly this ignorance proves to be detrimental for society in future. Movies, documentaries, articles, discussions have all been made and are being made to promote the life of the children in brothels. These have initiated the government to take actions on the same thing for the betterment and development among the children by providing them basic necessities in terms of food, shelter, education and opportunities to outgrow themselves. Therefore this calls for legal support which can provide aid to these children to have a safe and secure childhood along with the scope to make a future. A thing to be noticed is that the crimes caused in our society are committed by men or women originated from a vulnerable section of society. Before accessing the crimes and making these perpetrators go through trials, the roots of these people need to be located in order to eliminate offences from society.
Laws governing children born in brothels
The rights that every child irrespective of where they are born to possess are Child Rights. Child Rights are inclusive within the ambit of Human Rights specifically focusing on children. Like the fundamental rights that have been mentioned previously, there are a set of rights in the form of child rights that are necessary to be provided to every child. They are:
Right to Develop which includes education as a key element along with which cultural activities, recreations are all present. To simplify whatever is required for the basic upbringing of a child.
Right to survive which consists of identification, access to food for nutrition and live freely.
Right to participation in decision-making, expression, speaking
Right to be protected from any kind of negative element.
Violation of these rights is common and easy to be carried out for they are at the end of the day children. Article 1, 2, 3, 4, 5 of the Universal Declaration of Human Rights provides the factors that are to be considered for any man, woman, and children as a basic need. These factors are further referred to in the Indian Constitution also. The motive behind the same is to provide any human with the essence of living.
Recognised legislation protecting those working in brothels along with their children is the Immoral Traffic (Prevention) Act, 1956. This Act recognizes the sexual exploitation of both male and female to be a cognizable offence. As the Act failed to focus and provide comprehensive provisions for children of the prostitutes, it required attention and therefore was subjected to reform. This Act was amended in 2018 as the Lok Sabha passed The Immoral Traffic (Prevention) Amendment Bill, 2018 which majorly highlighted the social issue of child trafficking that has been rapidly increasing in the nation. As the United Nation Children’s Fund (UNCF) has reported, several children are trafficked every year belonging to vulnerable sections of the society.
The Rescue and Rehabilitation of Children and Minors under The Immoral Traffic Prevention Act, 1986 directed a magistrate to order police officials to arrest any person who initiates the profession of prostitution in a brothel and the children of the brothels are to be rescued under the Juvenile Justice Act, 1986 thereby providing care and protection to the same. At present, the Juvenile Justice Act has been replaced by Juvenile Justice Act, 2015 aims to protect children from any kind of illegal activities which amount to an offence under the statutes related to the same along with providing a reasonable amount of care and protection to those children. Most of the children who are trafficked have remained untraced by officials for a prolonged time period.
Child trafficking is one of the forms of child prostitution. The United Convention on the Rights of the Child,1990 has termed child prostitution as being a type of exploitation sexually of a child who is below the age of 18 years in return for remuneration. Further, the report prepared by the Ministry of Human Resource Development, Government of India on child prostitution reveals that about 30 per cent of child prostitution comes from the cities of Calcutta, Mumbai, Bangalore, Delhi. The fact that can be inferred from this report is that all the cities mentioned are highly developed, metropolitan cities that are mostly urban in origin and are fit to provide basic amenities to its residents. But the fact that child trafficking is being carried on cannot be ignored. Indian Constitution along with the provisions mentioned before also lays down the responsibility of a state to provide special provisions for women and children in the state irrespective of the fact that they will prove to be discriminatory in nature under Article 15(3).
The Directive Principles of State Policy under the Indian Constitution has also proved to be helpful for females in terms of several socio-legal legislations. Article 39(e) and Article 39(f) aims to promote welfare for children irrespective from where they belong. While the former safeguards men, women and children from abuse at a tender age, the latter highlights that children should be provided with opportunities to grow and develop in a healthy atmosphere in order to protect their youth.
Along with the civil liabilities comes criminal liabilities as well. Section 366 A of the Indian Penal Code,1860 makes the procreation of any girl child who is minor from one place to the other punishable. Whereas Section 366 B declares importation of a girl below the prescribed age of 21 years as an offence. Along with these Sections, Indian Penal Code,1860 also lays down a provision which declares buying and selling of girls preferably minor for the purpose of prostitution as an offence under Section 372 and 373 which if committed will subsequently lead to imprisonment for a period of 10 years which can be accompanied by fine as well.
The Criminal Procedure Code,1973 is also a necessary statute that provides protection to minor girls and women from being exploited. Section 98 of the same statute provides for immediate relief to any girl or woman who has been subjected to detention unlawfully. As mentioned before as well, child rights were uplifted and better recognised and guaranteed by The Juvenile Justice (Care and protection of children) Act, 2000 for the Act elaborated under its domain the need for development, care, protection, education, rehabilitation. This Act broadly gave recognition to two objects which are:
Providing protection and care to the children in need of the same
Dealing with the juveniles who happened to be in conflict with the law.
Both these aspects are relevant if viewed from the perspective of the issue we have been discussing, specifically, children born in brothels. Care is the basic need for those children for the environment they belong to and are being brought up in. Similarly, the protection of the juveniles who have been in conflict with the law of the land is as important as providing care for them because children who are born in brothels happened to get influenced into a wrong direction because of lack of guidance and education.
For those who commit crimes are required to be sent to the rehabilitation centre to avoid similar confrontation in the future. It is necessary to mention the Information Technology Act, 2000 as well with all other statutes. This is because a new means of trafficking of children is being carried out by means of child pornography. Section 67of the Act makes the practice of the same punishable by declaring it illegal. In this world of digitalisation, a lot are being carried out without the affected individual much getting to know about it. If the same is being carried out on the children of the brothels, it will be difficult to be compensated for such an offence hence the application of such an Act stands essential.
The statutes mentioned above are some of those, which can protect a child born in a brothel for the child born in a brothel is no different from a normal child but the only factor in these children from a vulnerable section of the society are subjected to exploitation in a larger way than normal children who are privilege to be provided with more than just essential amenities.
Judgments dealing with the legislation governing children born in brothels
The landmark judgment passed by the Supreme Court of India in the case of Gaurav Jain v. Union of India provided the children born out of brothels with necessary recognition that they were required of. The apex court, in this case, held that the children born in the brothels to the prostitutes have been guaranteed the right to equality in terms of the opportunity to bring them at par with the other children in the society, necessary dignity, care and protection measures along with rehabilitation to make these children feel to be a part of the society at large and erase away the stigma that is attached to them by others in the society. Further keeping in view the same case, the court gave directives for the formation of a committee which will have the responsibility of coming up with a scheme which will include rehabilitation and protective measures for these children and the same will be regulated by the issuing of periodical reports of the improvement in the situation. Often in the cases of these children who are born in brothels, the mother is hesitant in revealing the identity of the father of the child. This issue was also taken into consideration by the Supreme Court of India. The court ruled that single mothers who bring up her child alone are not compelled by the fact of revealing the identity of the child’s father for any kind of legal activities that the mother and the child need to go through during their life. Therefore it will be the mother who will be considered as the sole lawful guardian of her child. Such a judgment was passed by the court in the case of ABC v. The State (NCT of Delhi). This judgment was welcoming for several women rights activists across the nation. Similarly for the mothers who under unfortunate situations give birth to their children in a brothel this judgment has been able to provide them with some kind of relief as far as the life of their children is considered.
In the case of Sakshi v. Union of Indiathe Supreme Court observed that there is a necessity to amend Sections 375 and 376 of the Indian Penal Code,1860 in order to safeguard children who are subjected to sexual abuse. This judgment makes it clear that the court is aiming towards a better future for the children who are born in brothels or are from vulnerable sections of the society and requires guidance and care to have a bright future. Not many judgments have been declared by the courts relating to the children in the brothels or prostitute as a whole. But whatever have been observed by the court have had an impact on the profession and the associates of the same in a good way.
What can be extracted from books, interviews, documentaries and movies are that the children who are born in brothels are subjected to a variety of odds in the society. The discrimination that they have been subjected to for their origin continues when they enter the society outside that of the brothel. NGOs are trying their best to reach out to these children and provide them with a similar kind of knowledge and requirements than any other child must-have. They have hidden talents which remain hidden because of lack of opportunities, scope and consideration by the outside world. Several children remain trapped in the profession especially if they are girls and if they are males then they are either associated with the profession of drug dealing or crimes that become hard for them in their future. Prostitution is such a profession that is recognised to be legal by some countries and illegal by others. It needs no recognition but is lacking support and protection for the children born in the brothels. To provide a better future in terms of security financially, physically, mentally, socially along with learning opportunities, the scope for establishing themselves the children are in need of the outside world to grow and fly and not restrain their dreams within the four walls of the brothel they are born in. From a legal perspective, the children born in brothels are subjected to all kinds of rights and liabilities as of the other children outside the brothel. They are as normal as the other. What law can do is to bring these children to the mainstream with the other sections of the society. It is then that equality in real terms can be achieved. These children are the responsibility of the people of society at large for they are our future. Respecting and protecting them is, therefore, our duty and responsibility. It is therefore required to provide these children with what they are subject to.