Author: Prajukta Mukherjee / BA LLB 5th year, Law student / ICFAI University Tripura.
Abstract
It is deeply concerning that rather than nurturing of innocent children who have the potential to shape society’s future are deprived of their childhood innocence and compelled to commit offences that they do not understand because of immaturity. Human trafficking is the dark world where everything is built upon cruelty and exploitation. The critical examination of the issue in the writing is the discrepancy between the legal and ethical perspective regarding the status of the victims and criminals. Trafficked children are considered victims under international and domestic laws, including the UN Convention on the Rights of the Child, the Juvenile Justice Act of India, and the Protection of Children from Sexual Offences (POCSO) Act. These laws are criticised for failing to identify, implement, and sensitise the process turning the protection mechanism into victimising apparatus. Through judicial interpretation and case analysis, the policy and practice discrepancy that led to the confusion between protection and punishment ambiguity is revealed. The paper proposes a reform oriented, right based humanitarian consideration and legal obligation thereby compelling the justice system to view trafficked children as victims or survivors deserving restoration, dignity, and reclaimed childhood. The paper advocates for a Jurisprudence which extends for protection to the vulnerable without compromising justice.
Keywords:- Child Trafficking, Juvenile Justice System, Victim Criminalisation, Child Protection Law, Right-Based Legal Framework.
Between Innocence and Injustice: An Introduction
Child trafficking is still one of the most grievous human rights violations, taking advantage of the vulnerability of children through deception, coercion, and abuse.[1] Despite all the improvements in the legislative framework, thousands of minors continue to fall victim to forced labour and prostitution, among other types of violence. Indeed, it falls within this context that we witness a disturbing dilemma, victims of child trafficking are criminalised under the law, rather than being acknowledged as victims in need of assistance. This paper provides an analysis of the legal and systemic deficiencies, which facilitate the criminalisation of children who have been trafficked, particularly in countries such as India, where the Juvenile Justice (Care and Protection of Children) Act, 2015 coexists with repressive criminal laws. An assessment of gaps in fulfilling global legal obligations regarding the protection of human rights in a certain country will reveal the loopholes in identifying the victims, exercising compassion towards children in court proceedings and offering assistance with rehabilitation. International frameworks such as the UNCRC and the Palermo Protocol protect minors from criminalisation, but those concepts are not implemented at domestic levels, for example, in the US. Structural flaws growing from a lack of police and judiciary sensitisation to ineffective identification mechanisms result in the misidentification of trafficked children as “children in conflict with law.”[2] As such, these children are subjected to the threat of criminal prosecution, imprisonment, and societal stigma, which further diminishes their chances of recovery. It is crucial to recognise this disconnect in order to ensure compliance with international obligations and uphold the integrity of the juvenile justice system.
While examining statutory models, empirical case studies, and global standards, the paper promotes a rights-based, trauma-sensitive juvenile justice approach.[3] The primary argument is that criminalising trafficked children violates the principles of justice and encourages exploitation cycles. The research thereby urges legal reform and systemic coherence to the effect that law can become a tool of protection rather than punishment for the most vulnerable.
Legal Definitions and Jurisdictional Scope of Child Trafficking
Human trafficking, especially when it involves children creates horror, constituting one of the gravest violations of human rights, freedom, and dignity. It undermines the moral and legal fabric of societies by turning children, who should be shielded by protection and care, into objects of exploitation. At the global level, the most authoritative definition of trafficking in persons is provided by the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, also known as the Palermo Protocol, 2000. According to this protocol, human trafficking is defined generally as the activity involved in procuring or transferring people using coercion and deception for exploitation purposes . In the case of children, however, the Protocol removes the requirements to prove coercion or consent on the grounds of recognising that the vulnerability of a child nullifies any form of supposed agreement. The UNCRC complements these provisions by placing an absolute obligation on state parties to take effective measures to prevent the abduction, sale, and trafficking of children.[4] Together, these instruments create a global legal framework that places the protection of trafficked children in a broader human rights context. India’s domestic law also heavily reflects these international commitments, even though the framework is still somewhat spread across multiple statutes. Trafficking is listed as an offense in Section 370 of the Indian Penal Code, which has since been replaced by Section 143 of the Bharatiya Nyaya Sanhita, 2023.[5] The list also includes other forms of exploitation, such as forced labor, slavery, servitude, and sexual exploitation. This is further supported by the Juvenile Justice (Care and Protection of Children) Act, 2015, which classifies trafficked children as needing care and protection and places more emphasis on rehabilitation and reintegration than retaliation. Together, the Protection of Children from Sexual Offences (POCSO) Act, 2012, provides extensive protections against sexual abuse, which is often a central component of crimes related to human trafficking. Together, these legal tools create a robust, rights-based framework that both criminalise human trafficking and works to restore the child’s dignity. The current difficulty is making sure that these laws are read and applied with a child-sensitive perspective, putting protection, empowerment, and long-term justice above prosecution.
The Criminal Law Dilemma: Victim, Offender, or Both?
Instead of viewing children who are trafficked and forced into illegal activities like drug sales, prostitution, or theft as victims, the law often views them as criminals. This presents a serious ethical and legal dilemma: should these children be shielded and given rehabilitation, or should they be punished for the crimes they were coerced into committing? This inconsistency becomes particularly evident in India when contrasting various laws.[6] While the Juvenile Justice (Care and Protection of Children) Act, 2015 acknowledges that children involved in such activities may actually be victims in need of care and protection, the Indian Penal Code (IPC) punishes activities like drug trafficking and sex work. But in practice, police frequently detain and prosecute children who have been trafficked without first verifying if they were forced to commit such acts.[7] This system fails to address the trauma that they have gone through and often usually results to secondary victimisation.[8]
International human rights law is more explicit. The UN Convention on the Rights of the Child and the UNODC Model Law against Trafficking in Persons both provide that the children being trafficked must not be punished for acts they commit due to trafficking. Our country India lacks a clear procedural safeguard to implement this principle firmly.[9] In order India needs a clear and consistent legal framework that prioritises protecting trafficked children over prosecuting them in order to address this issue
Juvenile Justice in Theory and in Practice to Recent Scenario.
The foundation of the juvenile justice system is the belief that young people who are in legal trouble are essentially developmentally and psychologically distinct from adults. Juvenile justice, which is rooted in the idea of rehabilitation as opposed to retaliation, seeking reform rather than punishment.[10] The child-focused policy recognises that juvenile delinquency is often the consequence of some form of mistreatment, neglect, exploitation, or the absence of any social infrastructure, which makes rehabilitation both possible and necessary for them to turn around their life by acting quickly and compassionately. The Juvenile Justice (Care and Protection of Children) Act, 2015 in India reflects the concept of rehabilitation. This act has provisions that address children who are found to be in conflict with the law. The Act establishes Child Welfare Committees and Juvenile Justice Boards, specialised forums designed to ensure child-friendly proceedings.[11] The key aspects such as age determination are managed with care to ensure the child is not penalised in any way. The progressive nature of this legislation is also seen through its provisions for bail and prohibiting confinement in jail alongside adults. Plans for tailored rehabilitation programs will intend to ensure that all the needs of each particular child are being addressed. Nevertheless, even with such a comprehensive approach to protect the rights of children, the system may fail because of existing biases, lack of training, and the poor infrastructure, making it hard for this legislation to be applied appropriately. Thus, far from getting protection and rehabilitation, many children, especially those who get involved in trafficking and other heinous crimes, end up being stigmatised and treated as offenders.
Rights-Based Approach and International Guidelines
Placing the child at the center of all legal, policy, and procedural frameworks is a key component of a rights-based approach to juvenile justice, particularly for children who have been trafficked. International human rights instruments, most notably the 1989 United Nations Convention on the Rights of the Child (UNCRC), to support this.[12] In view of the fact that the UNCRC is a legally binding international agreement which was signed in 1992 by India, it is clear that this convention guarantees the protection of all children against ill treatment, abuse, exploitation, neglect, violence, and trafficking, as well as granting children the right to special treatment in case they violate the law not knowingly. Articles 37 and 40 of the Convention explicitly ensure that detained children are treated with respect, kept apart from adults, and subjected to procedures that prioritise reintegration and rehabilitation rather than punishment. [13] To supplement the UNCRC is the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography (2000), which India acceded to in 2005. The Protocol enhances State parties obligation to criminalise and prevent exploitation of children for commercial sex and other forms of trafficking. It underlines the importance of addressing trafficked children as victims, not perpetrator even if they were compelled to engaged in illegal acts, as an immediate consequence of exploitation.
International guidelines formulated by institutions like UNICEF and the United Nations Office on Drugs and Crime (UNODC) are also crucial. UNICEF facilitates child-sensitive justice and sets standards on diversion, non-custodial sanctions, and restorative justice.[14] According to the UNODC, through its “Model Law against Trafficking in Persons” and its opinions of reforms for juvenile justice, the adoption of children-specific requirements, identification process, and protection is encouraged in the fight against human trafficking. These guidelines ensures proper identification, trauma-informed care, provision of legal assistance, and community-based rehabilitation for victims.
India’s national law, specifically the Juvenile Justice (Care and Protection of Children) Act, 2015, accords with most of these global commitments. But enforcement is still inconsistent. Child victims of forced labour, commercial sexual exploitation, or drug trafficking are often incorrectly identified as perpetrators instead of being safeguarded as victims.[15] An approach based on rights requires a shift in paradigm from criminalisation to care backed by proper training, institutional change, and cross-sector collaboration to ensure the international standards India has agreed to[16]. Bridging this gap is essential not only to ensure compliance with international law, but also to affirm the inherent dignity and rights of every child is secured.
Systemic Gaps in Identification and Protection of Victims
In the face of available progressive laws and international obligations, children who are trafficked are often misidentified as delinquents within the juvenile justice system.[17] This is largely due to the combination of factors, lack of awareness, and inadequate training on the part of the frontline responders. For example, the policemen who happen to be the frontline workers may, at times, tend to focus on the crime that is being perpetrated and ignore the situation through which the child may have been forced into criminal activity. This means that when coerced children participate in selling drugs, stealing, and engaging in prostitution activities, they are apprehended for offences under criminal law without taking into account their victim status. These institutions often lack the specialised training, resources, or sensitivity to identify indicators of trafficking and trauma.[18] Medical examinations are often conducted in a mechanical or insensitive manner, with inadequate attention to the child’s psychological condition. CWCs, required to be the first line of protection, are plagued by delays, insufficient coordination with NGOs and the police, and saturated caseloads that imperil individualised attention.
Furthermore, the lack of trauma-sensitive and child-friendly processes undermines the protective purpose of the system. Interviews take place in apprehensive settings, in the absence of trained counsellors or interpreters, and without ascertaining the informed consent or comprehension of their rights on the part of the child. In addition to re-traumatising the child, this increases the likelihood of non-compliance and false accusations. In actuality, the system occasionally disregards the child’s best interests in favor of procedural efficiency. Closing such gaps in the system will call for legal reform as well as building capacity, inter-agency coordination, and institutionalising trauma-informed practices that respect the rights and dignity of trafficked children.
Real‑World Case Studies: Re‑Victimisation in the Justice System
Although the goal of the legal system is to safeguard and preserve the rights of all citizens, its interactions with child victims intensify the trauma experienced by the children. Re-victimisation happens when insensitive handling, rigid legal formalities, and procedures and processes execute the harm that victims have already endured as a result of abuse, neglect, or exploitation. Through actual case studies, this section illustrates how, even in situations where protective measures are supposedly in place, children may be subjected to repeated emotional, psychological, and social stress and trauma during the proceedings. Analysis of such cases comes up with important information about systemic gaps, points out the human toll from inconsistent or insensitive judicial practice, and emphasises the urgent need for child-centered reforms that place safety, dignity, and holistic well-being above procedural confidence.
- Sunaina’s Case (Delhi)
Sunaina, who was a sex worker trafficked from G.B. Road, got a rare amount of justice due to her powerful “victim‑witness testimony” and the efforts of NGOs. A magistrate, who had undergone an NGO‑organised training, identified Sunaina’s sincere disclosure and held her exploiter guilty under the Immoral Traffic (Prevention) Act.[19] Additionally, she was granted compensation, both through court judgment and a newly formulated government victim compensation program. Yet the result unveiled deeper systemic failures. Sunaina had to wait for years after the conviction to receive her compensation and, even after acquittal, still suffered the brunt of her exploitation. She failed to get reinserted into society due to prejudice in society, inadequate education, and a weak support system.
- Patna High Court Case – Misplaced Custody of a Trafficked Minor
In a serious misuse of legal safeguards, the Patna High Court considered the case of a 15-year-old girl who was trafficked by her maternal uncle and was compelled into prostitution. She was released into the wrong custody under the pretext of the Immoral Traffic (Prevention) Act.[20]
The court severely criticised the Special Judge for his inability to ensure obligatory provisions under the Juvenile Justice Act, especially the requirement to ensure the identity of the custodian before releasing the child. The judgment pointed out the way procedural expedience and disregard for statutory protection can compromise trafficked children by leaving them vulnerable to further abuse.
- Pinki v. State of Uttar Pradesh – Systemic Laxity Enabling Trafficking
The Supreme Court’s decision In Pinki v. State of Uttar Pradesh revealed another aspect of failure, that of the state itself.
A court set aside a High Court order granting bail to a trafficker who had sold a child for ₹4 lakh, terming the ruling “shockingly lax.” The bench openly criticised the state’s apathy in not opposing the grant of bail, cautioning that such negligence will encourage traffickers who exploit legal loopholes in the law, including the allegedly protective juvenile proceedings, to go on victimising children.[21]
Rehabilitation and Reintegration: Around Law to A Lived Reality
The rehabilitation and integration of people who have been exploited, abused, or trafficked is crucial and involves more than just laws, it involves real healing. Whereas laws may allow for the protection and assistance of the victims, implementation often remains inadequate. Counseling is crucial in helping the victim deal with their experience and restore their confidence. Failure to provide the victim with counseling would lead to partial and/or ineffective healing. Equally important is access to education and vocational training, which enables individuals to rebuild independence and reintegrate into society.[22] Reintegration into the community, however, is one of the most challenging phases. Survivors often face social stigma, discrimination, and distrust, which can lead them to stay isolated and be re-victimised. State institutions and non-governmental organisations (NGO’s) are key to overcoming the gap between practice and policy.[23] While state institutions have the funding and mandate to offer long-term care, legal services, and systemic reform, NGOs typically lead the way in providing specialised care, safe shelters, and community outreach. Barriers still exist. Often, there is insufficient infrastructure to provide care voluntarily, particularly in under-resourced or rural areas. Funding for long-term reintegration programs is still insufficient, and interagency coordination is frequently fragmented or poorly coordinated.
Furthermore, survivors who are repeatedly exploited are likely to be returned to the same socioeconomic circumstances that made them vulnerable in the first place. The cycle can reoccur unless there is a structural change. Effective rehabilitation and reintegration require more than just good intentions they require dedicated funding, sustained institutional support and a shift in societal perceptions.[24] Society can only ensure that survivors are not only protected but also given the tools they need to thrive by transforming legal requirements into tangible, wide-ranging support systems.
Judicial and Policy Inconsistencies through Observance
Significant judicial and policy inconsistencies continues to affect the legislative regime for protecting and providing for the welfare of children, leading to inconsistent interpretations and uneven application. Inconsistent legal interpretations and rulings undermine the coherence of jurisprudence and undermines public confidence in the legal system, especially in matters that are concerned to child rights, abuse, or custody. For instance, varying interpretations of the “best interest of the child” standard have led to inconsistent court decisions, with some giving greater weight to biological ties than to the child’s psychological or emotional needs.[25] These inconsistencies highlights the need for more coherent and consistent interpretive approaches by the Judiciary.
Judges, public prosecutors, and child advocates who are responsible for both enforcing the law and protect the tender interests of the children play a significant role in resolving this problem. Nevertheless, the lack of sensitivity and specialised training among these agents result in their decision-making, which tends to be legally sound but socially and psychologically inadequate. In some cases, judges becomes overly focused on procedural formalities while neglecting trauma-informed approaches, whereas public prosecutors are not properly equipped with a child-centric approach for a proper case management. Although functioning as an intermediary between the child and the legal process, child advocates often faces structural and institutional barriers that limits their effectiveness. Comprehensive judicial sensitisation and policy harmonisation are essential to resolving these disparities[26]. Judicial officers should receive regular training in global best practices, trauma-informed care, and child psychology. In a similar vein, policy guidelines must be revised to promote consistency in interpretations of child welfare laws, incorporating interdisciplinary contributions from education, psychology, and social work.[27] The legal system can move towards a consistent fair decisions that truly reflect children’s rights and best interests by supporting an integrated approach that better secures the future of children.
Reform, Restore, Reintegrate: Towards a Restorative Child Justice Framework
A comprehensive, multifaceted approach founded on reform to address prevention and meaningful participation is required to address this persistent gaps in the child justice system. This begins with establishing clear, standardised procedures to identify vulnerable children, particularly those which are found to be in conflict with the law, so that early intervention can becomes consistent and bias can be reduced. Recognising children as right holders in need of protection, the system can shift from criminalisation to support. Community based alternatives should be strengthened that prioritise rehabilitation over formal court proceedings, diversion programme needs to be strengthened and expanded.[28] When implemented effectively diversion provides children an alternative to detention to be reintegrated into society through care, mentoring, and structured support. Alongside such initiatives, complete psychosocial rehabilitation especially access to mental health services, education, and vocational training-is essential in restoring dignity to children, building their resilience, and offering them opportunities to reintegrate into society in a meaningful way. A child-friendly justice system must operationalise the “three Ps”: prevention, protection, and participation. Preventive policies and measures should address structural vulnerabilities such as poverty, abuse, and lack of access to education, while protection frameworks must embed child-friendly procedures at every stage of the legal and administrative process.[29] At the same time, encouraging active involvement in decision-making processes regarding their lives empowers children and increases their agency in line with international obligations under the UN Convention on the Rights of the Child. Ultimately, juvenile justice must shift from being punitive to being restorative and healing oriented. In restorative justice, children should be met with compassion, empathy, support, and reintegration rather than punishment. This system helps build a future based on care, fairness, and accountability through rehabilitation and restoration of dignity. It will, therefore, ensure that juvenile justice is not just a legal procedure but a compassionate process, emphasising the commitment of society to its most vulnerable members.
Conclusion: Maintaining Rights & Reclaiming Dignity
The overlap between juvenile justice and human trafficking can be considered one of the most pressing and challenging issues of child welfare and rights across the globe. All too often, trafficked children end up being overlooked, prosecuted, or falling through the cracks of systems that fails to fully recognise the vulnerability of their situation or the suffering that they have endured. It clearly justifies the necessity for reforms in the existing framework, with the ultimate aim being the reform of the justice systems in a way that recognises the dignity of trafficked or exploited children. The existing framework tends to prioritise prosecution over protection, often overlooking the lived experiences of the child. In order for things to change for the better, there is a need for a more responsive and child centered justice system the one that focuses on protection, prevention, detection, rehabilitation, and the active participation of the child. No child should ever get prosecuted for acts that were being committed under coercion or against their will. Justice that considers the child with empathy, views him or her as a right bearing individual rather as an offender stripped of dignity from society, and restores agency to the child to reclaim his or her autonomy and self-respect is true justice. Restorative justice therefore is just not merely an abstract concept but a fundamental requirement that reflects the moral foundation of law. Through safeguarding the rights of trafficked children and restoring their dignity, we come closer to establishing justice that upholds not just law but morality as well.
[1] UNODC, Global Report on Trafficking in Persons 2022 (UNODC 2022) 14.
[2] Sandeep Suresh, ‘Criminalisation of Child Trafficking Victims in India: A Critical Analysis’ (2021) 12 Indian Journal of Human Rights 45.
[3] National Crime Records Bureau (NCRB), Crime in India 2021, 78-80.
[4] United Nations Convention on the Rights of the Child 1577 UNTS 3, arts 35–36.
[5] Indian Penal Code 1860, section 370 (repealed by Bharatiya Nyaya Sanhita 2023, s 143).
[6] Juvenile Justice (Care and Protection of Children) Act 2015 (India) s 1(4)(i)‑(ii).
[7] UNODC, Model Law against Trafficking in Persons (United Nations 2009) art 10
[8] National Human Rights Commission (NHRC) of India, Study on Child Trafficking in India (NHRC 2022) 45–47
[9] S Suresh, ‘Criminalisation of Child Trafficking Victims in India: A Critical Analysis’ (2021) 12 Indian Journal of Human Rights 45.
[10] Thomas Grisso and R G Schwartz, Youth on Trial: A Developmental Perspective on Juvenile Justice (University of Chicago Press 2000) 7–9.
[11] Juvenile Justice (Care and Protection of Children) Act 2015 (India) ss 27–29.
[12] United Nations Convention on the Rights of the Child 1577 UNTS 3 (UNCRC).
[13] Convention on the Rights of the Child, adopted 20 November 1989, United Nations, arts 37–40.
[14] United Nations Office on Drugs and Crime (UNODC), Model Law against Trafficking in Persons (United Nations 2009) art 10.
[15] Juvenile Justice (Care and Protection of Children) Act 2015 (India) ss 27–29.
[16] Michael Tonry, Youth Crime and Juvenile Justice (Oxford University Press 2004) 23.
[17] UN Committee on the Rights of the Child, General Comment No 24: Children’s Rights in the Child Justice System
[18] UNICEF, Child-Sensitive Justice: The Case for Reform (UNICEF 2016).
[19] Sunaina Case, as reported in Centre for Equity Studies Report on Trafficked Women in India, 2019.
[20] Patna High Court, In Re Custody of a Trafficked Minor (2021)
[21] Pinki v State of Uttar Pradesh (2023) 6 SCC 412.
[22] UNICEF, Child Protection and Rehabilitation: Guidelines for Reintegration, 2015.
[23] Human Rights Watch, Breaking the Chains: Child Slavery, Forced Labour and Trafficking in India
[24] United Nations Office on Drugs and Crime (UNODC), Toolkit to Combat Trafficking in Persons (UNODC 2008) 301–304
[25] Gaurav Nagpal v Sumedha Nagpal (2009) 1 SCC 42
[26] National Judicial Academy (India), Child-Friendly Courts and Judicial Sensitisation: Training Module (NJA 2020) 12–15
[27] United Nations Guidelines on Justice in Matters Involving Child Victims and Witnesses of Crime ECOSOC Res 2005/20, paras 38–45
[28] United Nations Standard Minimum Rules for the Administration of Juvenile Justice GA Res 40/33, Rules 11–19
[29] UN Committee on the Rights of the Child, General Comment No 12: The Right of the Child to be Heard (2009)