Supreme Court issues guidelines to curb child trafficking, warns of contempt for laxity

New Delhi: The Supreme Court on Tuesday issued a set of guidelines for all the States to prevent child trafficking and offences arising out of it, saying that any laxity in implementing the directions would be taken seriously and be treated as contempt of court.

A bench of Justices J B Pardiwala and R Mahadevan expressed its serious concern over the bail granted to a group of accused in child trafficking cases by the Allahabad High Court.

"Considering the serious nature of the crime and the modus operandi adopted by the accused persons we are of the view that the High Court should not have exercised its discretion in favour of the accused persons," the bench said.

The outcome of this callous approach on the part of the High Court has ultimately paved way for many accused persons to abscond and thereby put the trial in jeopardy. These accused persons are a big threat to the society wherever they are in the country, the court said.

Dealing with a batch of petitions, the bench said, the accused have exhibited a tendency of committing a particular nature of crime, namely, child trafficking. The least that was expected of the High Court while granting bail to all the accused persons was to impose a condition on each of them to mark their presence once in a week at the concerned police station so that the police can keep a check over the movements of all the accused persons. 

All that the High Court did was to direct the accused persons to remain present before the trial court. In none of the impugned orders there is a condition of marking presence at the concerned police station as a result, the police lost track of all these accused persons, the bench said.

"We are thoroughly disappointed with the manner in which the State handled the situation. Why did the State not do anything for all this period of time? Why did the State not deem fit to challenge the orders of bail passed by the High Court? The State unfortunately has exhibited no seriousness worth the name," the bench said in its 93-page judgment.

The court set aside the bail and directed all the accused to surrender before the trial court. It also directed the Varanasi court to complete the trial in six months, by conducting the proceedings on a day-to-day basis.

The court said the sacrosanctity of liberty is paramount in a civilised society. However, in a democratic body polity which is wedded to the rule of law an individual is expected to grow within the social restrictions sanctioned by law. The individual liberty is restricted by larger social interest and its deprivation must have due sanction of law. 

"In an orderly society an individual is expected to live with dignity having respect for law and also giving due respect to others' rights. It is a well-accepted principle that the concept of liberty is not in the realm of absolutism but is a restricted one," the bench said.

The cry of the collective for justice, its desire for peace and harmony and its necessity for security cannot be allowed to be trivialised. The life of an individual living in a society governed by the rule of law has to be regulated and such regulations which are the source in law subserve the social balance and function as a significant instrument for protection of human rights and security of the collective, the bench added.

This is because, fundamentally, laws are made for their obedience so that every member of the society lives peacefully in a society to achieve his individual as well as social interest, the bench pointed out.

The true test to ascertain whether discretion has been judiciously exercised or not is to see whether the court has been able to strike a balance between the personal liberty of the accused and the interest of the State, in other words, the societal interests. Each bail application should be decided in the facts and circumstances of the case having regard to the various factors germane to the well settled principles of grant or refusal of bail, the bench said.

In its judgment, the bench said, "We want to convey a message to one and all more particularly the parents across the country that they should remain extremely vigilant and careful with their children. A slight carelessness or negligence or laxity on their part may prove to be extremely costly."

The pain and agony which any parents may have to face when the child dies is different from the pain and agony that the parents may have to face when they lose their children to such gangs engaged in trafficking. When the child dies, the parents may with passage of time resign to the will of the Almighty but when the child is lost and not found they have to suffer the pain and agony for the rest of their life. It is worst than death, the bench said.

"Therefore, we humbly urge to one and all to remain very cautious and vigilant. If any newborn infant is trafficked from any hospital, the immediate action against the hospital should be suspension of licence to run the hospital over and above other actions in accordance with law. When any lady comes to deliver her baby in any hospital, it is the responsibility of the administration of the hospital to protect the newborn infant in all respects," the bench said.

The court directed all the State Governments across the country to look into the report of BIRD (Bharatiya Institute of Research and Development), New Delhi on human trafficking. 

"All the State Governments are directed to study the entire report and start implementing each of the recommendations by working out appropriate modalities in that regard," the bench said.

The court directed all the High Courts across the country to call for the necessary information as regards the status of the pending trials relating to child trafficking. 

Once each of the High Courts is able to collect the necessary data as regards the status of the trials, a circular thereafter shall be issued on its administrative side to all the concerned trial courts to complete the trials within a period of six months, the bench said.