Awareness of Child Trafficking Empowers Prevention: Understanding the International and National Legal Framework

To adopt a child has always been considered an alternate care mechanism that has come to the aid of children unable to live with their parents owing to many reasons. Rising costs of infertility treatments, rising population of the world and dissipating negative stigmas associated with adoption etc have made adoption of a child an increasingly viable alternative for infertile couples. This has given way to child trafficking. Charlie Custer, a documentary filmmaker highlighted many cases where children from China were kidnapped and placed for adoption in the United States. Similar reports have been found in case of kidnapped Ukrainian children that have been placed for adoption in Russia. It is worthwhile to understand the legal framework in global and Indian perspective with regard to protection of our children, our future.

On 20th November 1989 UN adopted by a General Assembly resolution The Convention on the Rights of the Child. Whenever a child is illegally deprived of his identity, family relations etc it is the duty of the State Parties to provide the appropriate assistance and protection in this regard. It recognises that family is the fundamental group of the society and at bare minimum a child should have access to the natural environment for growth and well being of all children.

Developed by the Hague Conference on Private International Law, The Hague Convention on Protection of Children and Cooperation in Respect of Inter-country Adoption was introduced in 1993, to have a global regulatory system for legal adoptions while keeping in mind the state approved mechanisms. It aims to prevent abduction, the sale of or traffic in children.

The developments over the years led people to ponder upon the purposes for which trafficking was being done. Trafficking in persons could no longer be brushed under the carpet. The Protocol of Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Conventions against Transnational Organized Crime (the Protocol) 2000 (enforced in 2003) established the first common international definition of “trafficking in persons”.  Article 3 of the Protocol defines trafficking. It provides that the exploitation therein shall include, at a minimum, the sexual exploitation, forced labour or services, slavery and similar practices, servitude or removal of organs. Herein, the consent of victim for intended exploitation has been rendered irrelevant. It recognises a “Child” to be a person under eighteen years of age.

The flip side of stringent legal framework is that the process for adoption has become unbearably long for the prospective parents. At a minimum the parents are waiting for 3-4 years for legal adoption. The process compliance, matching of child and necessary verifications take a long time which unfortunately make trafficking in children for the purpose of adoption an attractive proposition.

The 2016 Report of the Special Rapporteur on the sale of children, child prostitution and child pornography, concluded that illegal adoptions namely adoptions that are the result of crimes such as the abduction and sale of and trafficking in children or that are processed through the commissions of other illegal acts of illicit practices such as the lack of proper consent of biological parents, fraud and improper financial gain, violate multiple child rights norms and principles, including the best interests of the child.

The Report has yielded heart breaking results entailing participation of parents with or without financial gain as well.

Although, the protection regime for children has existed since independence the prevalence of trafficking in large numbers, the number of cases has only risen with time. Particularly, Article 23 of the Constitution of India recognises trafficking and prohibits the same. Further, India’s ratification of the above-mentioned Protocol has given way to amendments in the Indian Penal Code (IPC) in 2013 reflecting in Sections 370 and 370A of the IPC corresponding to Section 143 and 144 of Bhartiya Nyaya Sanhita (BNS) respectively. 

With the development in technology the traffickers have also adopted advanced modus operandi in terms of sharing pictures of victims, online money transfers, location sharing features etc. They operate as a well-oiled network that is easily able to procure buyers for selling the children outside their states. Recent research has reflected that a large number of such kidnappings have been taking place in large numbers. The need to consolidate the cases and identify patterns has never been more urgent.

Owing to history of Child selling in India, the Supreme Court in many judgments has addressed the inter-country adoptions, malpractices associated therewith and trafficking in children. A key judgment is that of Lakshmi Kant Pandey v Union of India (1984 SC). It came to be highlighted that many organisations and individuals were trafficking and selling children in the garb of inter-country adoption. In order to address the issue, the Court referred to important legal provisions related to child welfare such as Article 15(3), 24 and 39 of the Constitution of India. It also referred to myriad principles as promoted and embodied in the UN Declaration on the Rights of the Child (1959). The Supreme Court laid out a comprehensive framework of normative and procedural safeguards for inter-country adoption regulation. As per the safeguards it was mandated that foreigners wishing to adopt should be sponsored by relevant licensed agencies in their home countries. They were barred from approaching any adoption agency in India directly. The said agencies in India were also required to conform to stipulated criteria, and undertake all steps in ensuring the safety and welfare of children. The local court’s approval in adoption cases was also necessitated.  

In the aftermath of Lakshmi Kant Pandey judgment, the Government of India set up Central Adoption Resource Authority (CARA) to regulate, monitor and promote adoption of orphaned, abandoned or surrendered children. Today CARA is an intrinsic part of the Juvenile Justice system by virtue of Section 68 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act, 2015) which accords the status of a statutory body to CARA. Any child who is orphaned, abandoned and surrendered and is declared legally free for adoption by the Child Welfare Committee can be placed for in-country and inter-country adoption. However, the processes are so long drawn that in terms of the demand for children there are not enough children who are declared “legally free for adoption” under the law. This further gives impetus to trafficking in children.

In 2014 in the case of Bachpan Bachao Andolan v Union of India & Ors (2014 SC), Supreme Court issued several directions in order to address the local police handling of the complaints regarding missing child. The direction included that there will be an initial presumption of either abduction or trafficking, unless, in the investigation, the same is proved otherwise….

The National Human Rights Commission (NHRC) has constantly been making efforts in the right direction. In 2023, it entrusted the study on Human Trafficking to the Bhartiya Institute of Research and Development (BIRD), New Delhi. The report identifies poverty and illiteracy as two primary causes of trafficking. Most parents of trafficked victims are illiterate and living in abject poverty. Other reasons include social customs, corruption and gender inequalities.

Recently, the Supreme Court addressed these issues in the case of Pinki v State of Uttar Pradesh and Anr. (2025 SC). It is a case pertaining to child trafficking racket which was filed by the kith and kin of the children who came to be trafficked. The Allahabad High Court, released 13 accused persons on bail. The petitioners filed appeal seeking cancellation of bail. Despite servicing notices many accused did not appear to oppose the appeal. The Court in a welcome step criticised the discretion exercised by the High Court. It acknowledged that these accused are a big threat to the society and by their absconding the High Court has put the trial in jeopardy. The Court granted two months-time to police to trace all those absconding. It directed trial court to issue non-bailable warrants as well. In a laudable step, the State Government was directed to ensure that the trafficked children are admitted in schools in accordance with the provisions of the Right of Children to Free and Compulsory Education Act, 2009 along with continued support in this regard. A copy each of this important judgment has been forwarded to High Courts and State Governments as well.

While a well-meaning legal framework is in place, that doesn’t take away or ease in any way the responsibility of parents and caregivers towards the children. The vigil and care that a parent is required to maintain with respect to their children goes a long way in preventing negligence or laxity that may prove to be extremely costly.

(Editor, The Fifth Pillar)