Bio-Piracy: An Usurpation Of Prior Art

Zenefer Zaman and Sandip Bhosale

Meaning of Bio-Piracy:

The concept of “Bio-piracy” is commonly construed as the misappropriation of the knowledge and genetic resources of the farmers and indigenous people by individuals or institutions seeking exclusive monopoly control over these resources and knowledge. Hence, Bio-Piracy takes place in the form of applying and granting of ‘wrong patents’ or granting patents on ‘Inventions’ derived from a ‘Community Traditional Knowledge’ in other words known as “Prior Art”.

As defined by an online Dictionary, the term Bio-piracy is referred to the commercial development of naturally occurring biological materials, such as plant substances or genetic cell lines, by a technologically advanced country or organization without fair compensation to the peoples or nations in whose territory the materials were originally discovered .

Bio-piracy is the theft or usurpation of genetic materials especially plants and other biological materials by the patent process. Biological diversity or biodiversity encompasses all species of plants, animals and micro organisms and the variations between them, and the eco-systems of which they form a part. Traditional Knowledge (TK) associated with such biological resources is an intangible component of the resource itself. Such knowledge has the potential of being translated into commercial benefits by providing leads for development of useful products and processes. The commercial potential involved in biological resources and the associated TK has assumed enormous magnitude in the last couple of decades with the tremendous proliferation of the biotechnology industry. Given that most of the world’s biodiversity rich countries are developing countries located in the tropics, these nations should have been in a strong position to benefit substantially by trading in such bio-resources and the associated TK. Unfortunately, this is far from the case. More often than not it is the giant MNCs of the developed world who are instrumental in appropriation of the precious bio-resources and the allied TK of the undeveloped nations, without the Prior Informed Consent (PIC) of the legitimate holders of such resources, thereby bypassing any benefit-sharing arrangement with them. The mounting profits emanating from the commercial exploitation of these prized resources accrue solely to the corporate giants of the developed world, courtesy the exclusive patent protection obtained by suppressing the true source of the relevant bio-resource or the TK. The country of origin of the concerned bio-resources or TK however remains deprived of its legitimate share of the profits generated out of them. Such unscrupulous business practices of the MNCs have come to be known as Bio-piracy.

Many of the indigenous communities are living on the basis of the knowledge they preserved for generations. The development of new technologies and the use of traditional knowledge are posing serious threat to the survival of these communities. The modern industries are now a day’s exploiting indigenous knowledge without permission or sharing of profit with these communities . TK is capable of providing valuable leads which may result in products of high commercial value. The protection of TK would be necessary to bring equity to such unjust and unequal relations.

Another factor that calls for protection of TK is to maintain the practices and knowledge derived from traditional life styles. Preservation of TK is intended to provide self identification to these indigenous communities and thereby provide continuous existence of indigenous people. If TK is having a high economic potential, then its prospects should be used for the general wellbeing of the communities which preserved them for generations. Besides this maintenance of the distinct knowledge systems that give rise to TK is vital for the future well being, development, cultural and intellectual vitality of indigenous communities.

LANDMARK CASES

1. The Case of Basmati Rice (Oryza sativa Linn)

Basmati rice, known for its aroma and long grains has its origins in the Indian subcontinent . On 2nd September 1997, Texas based Rice Tec Inc. was granted patent number 56663484, for the genetic lines of Basmati Rice, by the U.S patent and Trademark Office (USPTO). Immediately, Rice Tec began to develop hybrids using various blends of Basmati. Promoted as an,‘American type of Basmati rice’, Rice Tec developed a new plant variety cross between American long-grain and Basmati.

Criticism from Indian rice farmers logically ensued, as many were forced to pay royalties to the conglomerate. The production and cultivation of Basmati has with it a history dating back to centuries ago. In April of 2000 Indian officials publicly pleaded with the United States Patent and Trademark Office (PTO or USPTO) to review the RiceTec Basmati case, as Indian exports were beginning to be threatened .Government officials were armed with hundreds of pages of scientific data proving that the distinguishing characteristics of RiceTec’s rice were also found in Basmati . Moreover, the use of the name ‘Basmati’ itself was misleading for customers considering that the product was a hybrid grain .The name ‘Basmati’ carries with it a reputation of culinary excellence, and RiceTec was benefiting from it. Under Article 23 of the TRIPs agreement, using words such as “kind”, “type”, and “style” is illegal, and RiceTec had used such words numerous times in advertising schemes .

Moreover, considering the geographical indicators clause of TRIPs, the entire process of approval and acquisition of RiceTec’s Basmati patent can be deemed to be illegal. Article 22 of the TRIPs agreement, (the geographical indicator clause) prohibits the use of both direct and indirect uses of a goods geographical origin. In this respect, Basmati is to the India what Champagne is to France, part of the regional identity.

On 14 August 2001 USPTO overturned a large amount of claims held under Patent No.5663484. Amidst great public scrutiny and criticism, RiceTec lost the right to use the ‘Basmati like’ advertising slogan. At the discretion of USPTO, out of 20 Basmati patent claims, 15 were withdrawn. RiceTec was able to keep their Indian-American hybrids Texmati, Jasmati and Kasmati .To the dismay and outrage of citizens and farmers, after the patent withdrawals, the Indian government publicly stated they were very satisfied and wished to drop all other charges.

The Case of Neem Tree (Azadirachta Indica)

DURING 1994, Indian farmers staged one mass demonstration after another against the proposed GATT Uruguay Round agreement. In March about 200,000 gathered in Delhi demanding, among other things, that the draft treaty known colloquailly as ‘the Dunkel draft’ after chief negotiator, Arthur Dunkel should be translated into all Indian languages. On 2 October, about half a million converged upon Bangalore to voice their fears about the impending legislation, aware of the threat that GATT poses to their livelihoods, by allowing multinational organizations to enter Third World markets at their expense .In particular, many of them began to question the Dunkel Draft’s call for an international harmonisation of property rights legislation.

The Case of Turmeric (Curcuma longa Linn)

In 1995, two expatriate Indians at the University of Mississippi Medical Centre (Suman K. Das and Hari Har P. Cohly) were granted a US patent no.5, 401,504 on use of turmeric in wound healing. The Council of Scientific & Industrial Research (CSIR), India, New Delhi filed a re-examination case with the US PTO challenging the patent on the grounds of existing of prior art. CSIR argued that turmeric has been used for thousands of years for healing wounds and rashes and therefore its medicinal use was not a novel invention. Their claim was supported by documentary evidence of traditional knowledge, including ancient Sanskrit text and a paper published in 1953 in the Journal of the Indian Medical Association. Despite an appeal by the patent holders, the US PTO upheld the CSIR objections and cancelled the patent. The turmeric case was a landmark judgment case as it was for the first time that a patent based on the traditional knowledge of a developing country was successfully challenged . The US Patent Office revoked this patent in 1997, after ascertaining that there was no novelty; the findings by innovators having been known in India for centuries.

The patenting of neem, haldi or amla underscores the urgent need to evolve legal systems to protect our indigenous biodiversity in order to prevent such piracy through patents. The trouble is India still does not allow patents on plants . Under the rules of World Trade Organisation, every nation is free to evolve its own method (sui generis) of plant protection. The US is the only country which grants patents on plants .

The Case of Bt Cotton

Prior to colonization, cotton was traded in the Indus Valley as mainly a Luxury good. It was only in the 19th century, after colonization that cotton cultivation followed a more mass production like structure.

Cotton production is a staple of the Indian agricultural economy. Some 7 million farmers depend on the crop for sustainable living, and overall 21% of all cotton produced globally comes from India. However, cotton is a very expensive crop to cultivate. Over half of India’s total pesticides (40,000 tonnes) are used in the upkeep of cotton cropland .

In 1998 Monsanto began a series of Bt cotton trial tests in India, albeit illegally. Monsanto did not apply for trial testing clearance, and was not given any sort of formal approval to conduct studies on rural land. After going public with the results of their trial tests, Monsanto promoted Bt cotton as the perfect cost-cutting crop for rural India. It was claimed that yield output would increase to 3,300 pounds per acre. Moreover, Bt cotton would need to be sprayed approximately 2.6 times less then both organic and hybrid cotton. Even though inputs were more expensive, the genetically engineered seed would be sprayed sparingly, ultimately reducing the cost of cultivation by 30% to 40% at least. With promises of higher yields and lower costs, the Indian government officially approved three Bt cotton hybrids (MECH 12, MECH 162, MECH 184) for clearance in 2002. This clearance was given to Monsanto in conjunction with the Maharashtra Hybrid Seed Company (Mahyco), which conveniently enough, Monsanto has a 26% stake in. Bt cotton was the first GM seed to be given clearance by the Indian government and is now viewed as the example of how agro-business conglomerates impact vulnerable rural communities .

Farmer suicides in Andhra Pradesh and Maharashtra have increased after Bt cotton was both approved and promoted by governing officials. The financial stress associated with Bt cotton, has indeed been grave. Moreover, with the adoption of such GM seeds and subsequent failure, many rural farmers have increasingly felt deep remorse. This sentiment of loss is a result of much regret associated with leaving cultural farming techniques, which carried with a sense of community and family. The loss of control over crop in both the indebted and sovereign sense is simply too much for many farmers.

The Case of Kava (Piper methysticum Forster)

Kava is an important cash crop in the Pacific, where it is highly valued as the source of the ceremonial beverage of the same name. Over 100 varieties of Kava are grown in the Pacific, especially in Fiji and Vanuatu, where it was first domesticated thousands of years ago. In North America and Europe, Kava is now promoted for a variety of uses. French company L’Oreal – a global giant with US $10 billion a year in sales – has patented the use of Kava to reduce hair loss and stimulate hair growth .

The Case of Ayahuasca (Banisteriopsis Caapi)

Shamans the indigenous tribals of Amazon basin were using the bark of B.Caapi to produce a ceremonial drink known as “ayahuasca” for generations. “Ayahuasca” means wine of soul and is used in religious and healing ceremonies to diagnose and treat illness. An American national Loren Miller obtained a US plant patent, Patent no 5751, issued in 1986, granting him rights over an alleged variety of B.Caapi which he had collected from a domestic garden in Amazon and was named as “Dä Vine”, which was peculiar for its medicinal properties. But in this case “Da Vine” represented a new and distinct variety of B.caapi because of its flower colour.

The coordinating Body of Indigenous Organizations of Amazon basin which represents more than 400 indigenous tribes in the Amazon region, along with others protested against granting of wrong patent for B.Caapi. They made argument that ayahuasca that had been known to the natives of Amazon basin for its medicinal uses. This argument was accepted and on re examination USPTO revoked this patent on 17th April 2001

The Case of Hoodia Cactus

Hoodia (and the similar Trichocaulon) are two succulent plants indigenous to southern Africa. For long, they have been used by San and Khoi shepherds of the harsh arid environments of southern Africa to reduce hunger and thirst. The South African Army also uses it to suppress appetite.

CSIR, one of Africa’s largest scientific and technological research institutions and the UK Company Phytopharm have entered into an agreement to develop an appetite suppressant, which has been named P57derived from Hoodia . As we all know, obesity is one of the main public health problems in developed countries, so the market potential is huge.

The international patent application WO 9846243 claims monopoly use of the P57 appetite suppressant agent of the extracts of Hoodia or Trichocaulon and its use in pharmaceutical appetite suppressants.

The Jamun Case

It is a plant; known for its anti-diabetic properties. It is common knowledge and everyday practice in India. Their use in the treatment of diabetes is documented in authoritative treatises such as the “Wealth of India”, and the “Treatise on Indian Medicinal Plants”. A US patent was granted in 1999 to Cromak Research Inc., based in New Jersey, USA. The assignees are three non-resident Indians .

The indigenous knowledge and use of the Jamun consist of prior art, that is, no patent should be given where prior art exists, since patents are supposed to be granted only for new inventions on the basis of novelty and non-obviousness. As Article 102 of the US Patent Law, which defines prior art does not recognise technologies and methods in use in other countries as prior art. Because of this, the Jamun could be patented in the USA.

LEGAL ASPECTS

The Convention on Biological Diversity

A big step was made in 1994 when the Convention on Biological Diversity (the CBD) came into force. This convention gave sovereign national rights over biological resources . One of the advantages of it is that it enables developing countries to better benefit from their result of traditional knowledge.

The objectives of the CBD are:

• to protect biodiversity

• to promote its sustainable use

• to share the benefits of such use equitably between providers and users.

The convention on biological diversity (CBD) was the result of discussion concluded at Rio de Janerio on United nations conference on earth and development (Earth Summit), 1992.The convention provides for protection of environment without compromising with the ongoing economic development17.The convention provides for recognition of knowledge of local and indigenous communities in genetic materials and sharing of benefit derived from it.

CBD can be regarded as the first international initiative to recognize the contribution of indigenous and local communities in conservation of biodiversity. In its preamble CBD recognizes the dependence of many indigenous communities on biological resources and stress on the desirability of benefit sharing.

Trade Related Aspects of Intellectual Property Rights (TRIPS agreement)

TRIPS agreement also has some provision which can be applied in a limited way for protection of traditional knowledge. Article 1 of TRIPS Agreement provides that members may but shall not be obliged to implement in their domestic laws more extensive protection than that is required by the agreement, provided that such protection does not contravene the provisions of this agreement. Many Jurists have opined that this provision can be invoked for protection of TK. They argue that absence of term TK in the agreement does not prevent any member from enacting any provision for protection of TK .

But under TRIPS it is not possible to protect TK under patent law. TRIPS requires member state to grant patent only to that inventions which are new, involving an inventive step and are capable of industrial application. But these attributes cannot be applied in the field of TK, as it is not new and is incapable of industrial application as such. But it is to be noted here that the same provision can be invoked to prevent bio-piracy. Besides this there are authors who argue that obligation to protect geographical indications provided by TRIPS agreement can be used to protect TK. TRIPS agreement by itself does create any measures for protection of traditional knowledge and innovations of indigenous people instead it creates measures for establishing alternative measures for its protection.

Traditional Knowledge Digital Library

Traditional Knowledge Digital Library (TKDL) is an innovative application of Information and Communication Technology for inventorisation of Traditional Knowledge (TK) in particular Traditional Medicine (TM) and Intangible Cultural Heritage, to preserve, safeguard, protect and get recognized Traditional Knowledge and Cultural heritage at National and International level .

The traditional knowledge information available in public domain is in local languages and in a format, which is not understandable to patent examiners. For example, books on Ayurveda containing drug formulations are in Sanskrit, for Unani system these are in Urdu, Arabic or Persian, and for Siddha in Tamil.

TKDL targets Indian Systems of Medicine, viz., Ayurveda, Unani, Siddha and Yoga available in public domain. This is being documented by sifting and collating the information on traditional knowledge from the existing literature existing in local languages such as Sanskrit, Urdu, Arabic, Persian and Tamil in digitized format, which will be available in five international languages which are English, German, Spanish, French and Japanese.

TKDL acts as a bridge between formulations existing in local languages and a Patent Examiner at a global level, since the database will provide information on modern as well as local names in a language and format understandable to Patent Examiners. It is expected that the issue of the gap on lack of access to prior art traditional knowledge shall get addressed.

World Intellectual Property Organization

In 2000 the WIPO General assembly established the IGC as a forum for discussion of intellectual property issues in relation to access to genetic resources, benefit sharing and protection of traditional knowledge and expressions of folklore. It acts as an international forum for international policy debate, development of legal mechanisms and for creating practical tools for protection of traditional knowledge and traditional cultural expressions against misappropriation and misuse. IGC work has produced large number of discussion papers on the subject of protection of TK.IGC has produced a number of practical outcomes which include, a toolkit for the management of IP in the context of documenting TK and genetic resources, a practical guide for protection of traditional cultural expressions, proposal for revision of international patent classification to contain categories of TK.

The committee has made substantial progress in addressing the practical linkages between the current intellectual property system and the custodians of TK. Committee is trying to bring about an international understanding regarding the principles that should guide the protection of traditional knowledge.

Besides all these international initiatives, last decade has witnessed many regional initiatives for laying down measures for protection of TK. African countries under Organisation of African Union prepared a model law on community rights and access to biological resources. The African Model Legislation for the Protection of Rights of Local Communities, Farmers, Breeders, and for Regulation of Access to Biological Resources aims at establishing a framework of national laws to regulate access to genetic resources and associated TK. Its provisions on access to biological resources make it clear that the recipients of biological resources or related knowledge cannot apply for any IP rights of exclusive nature. Besides this they provide for community rights over their biological resources and their right to collectively benefit from their use, rights to their innovations, practices, knowledge and technology and the right to collectively benefit from their utilization .Thus, in practice this model legislation intends to create a system which allow the community, right to prohibit access to their valuable resources and knowledge.

The World Trade Organizations (WTO)

The Ministerial Declaration of the WTO’s fourth Ministerial Conference (Doha- 9-14 November 2001) emphasized the importance of TK. It instructed the Council for Trade-Related Aspects of Intellectual Property Rights to examine, inter alia, the relationship between the TRIPS Agreement and the Convention on Biological Diversity, the protection of traditional knowledge and folklore, and other relevant new developments raised by Members pursuant to Article 71(1) In addition, it instructed the Committee on Trade and Environment in pursuing its work on all items on its agenda give particular attention to three issues, including the relevant provisions of the TRIPS Agreement. Moreover, it “recognized the importance of technical assistance and capacity building in the field of trade and environment to developing countries, in particular the least- developed among them.”

INDIA- COMBATING BIO-PIRACY

The Patent (Amendment) Act, 2005

India has amended the Patents Act in 1999 and 2002 to comply with the obligations of Trade-related Aspects of Intellectual Property Rights (TRIPS). The TRIPS agreement signed along with WTO agreement in 1995 provides for making certain changes in domestic patent laws, for reaching a uniform system of legislations relating to patent throughout the world. In order to fulfill this obligation under TRIPS patent act was duly amended in 2005. This amendment introduced into Indian IP system certain new measures for protection of TK.

Another provision is inclusion of new provision for opposition of patent, on specific grounds under section 25(1) of the Act. It provides after publication of patent application any person can in writing make an opposition to the controller of patents on the ground of lack of novelty or inventive step, or non disclosure or wrongful disclosure of source or geographical origin used in the invention and anticipation of invention by the knowledge, oral or otherwise available within any local or indigenous groups in the complete specification. Also now we can oppose a complete patent specification which was publicly known or publicly used in India before the date of claim40.

All the above provisions are defensive in nature which can help to oppose any patent granted to an invention which is based on the knowledge available within the indigenous groups of this nation. But these provisions are also not capable of covering the entire area covered by TK, which necessitates the need for a sui generis system for protection of TK.

CONCLUSION

Around the world, various local communities possess knowledge and practices gained by them through experience of centuries and transferred from generation to generation. TK is the result of intellectual activities in diverse traditional contexts. One of the challenges posed by the modern age is to find ways for strengthening and nurturing the roots of traditional knowledge so that its fruits can be enjoyed by future generation and so that the traditional communities can develop and sustain in ways consistent with their own values and interests .

There has been a growing interest in the International communities in the present times regarding these old and obsolete sources of knowledge which are highly adaptive and creative when transformed into commercially valued products. Knowledge, both modern and traditional, is under peril in the age of Globalisation. The most unfortunate part of the unfair acts of bio-piracy is that the actual holders of the TK are, most often, not aware of the unfair exploitations of their knowledge being taking place. Hence, the chances that these victims of illegal patenting would ever complaint about the infringement of their rights are meager. The International community has long ago realised that national initiatives alone are incapable for TK protection and hence the World nations are currently engaged in extensive discussion on preservation of traditional knowledge under various International Institutions.

Role of Indian judiciary in protection of Rights of the Children

Sandip Bhosale

1 Introductory

The role of the India Judiciary and the scope of judicial interpretation have expanded remarkably in recent times, partly because of the tremendous growth of statutory intervention in the present era. The judiciary plays an important role in the protection of fundamental rights of the citizen and non-citizens alike. The twin safeguards of equality before law and equal protection of laws are acknowledge as two of the most important pillars of human rights of the universe of freedom that is where ever freedom to assert human rights is recognized, whether under an unwritten or a written constitution. India is the largest democracy in the world, a sovereign, socialist, secular democratic and republic with a comprehensive charter of rights written into its constitution. The Indian Constitution lays down base on which its foreign policy should be constructed and its international obligations respected. These base are articulated principally in Article 51, which occurs in Part IV of the Indian Constitution.

The true nature and scope of the function of the court has since long been a matter of debate almost in all the countries regulated by written Constitution. Austinian Jurisprudence gives a very narrow view of the judicial function. Austin defined law as a command of the political sovereign and his sovereignty was indivisible and absolute, only the legislature could make law. The function of the court was merely to declare the pre-existing law or to interpret the statutory law. But on the other hand, the realist movement in the United State the latest branch of sociological Jurisprudence which concentrates on decisions of law courts. Regards and contend that law is what court says. For them, judges are the law makers. The entire common law is the creation of the English courts but is posited on the myth that judge merely found law. Even with such self-negating perception of their own role, the English judges not only made law but also changed it to suit entirely new conditions created by the industrial revolution.In this modern era Judicial Activism emerged as tool for protecting Rights of the Children including protection from sexual exploitation, child trafficking, child abuse etc. some case dealt by the Indian judiciary for the protection of child rights are as follows

2 Child Labour and Right to Education

Education is critical for economic and social development. It is crucial for building human capabilities and for opening opportunities. The importance of education was fully recognised by classical economist and social scientist such as Adam Smith, John Stuart Mill, Schultz, Becker and Amartya sen. Alfered Marshall in the Principles of Economics observed as follows:

“The wisdom of expending public and private funds on education in not to be measured by its direct fruits alone. It will be profitable as a mere investment, to give the masses of the people much greater opportunities, than they can generally avail themselves of. For by this means many, who would have died unknown, are able to get the start needed for bringing out their latent abilities. The most valuable of all capital is invested in human beings.”

The abolition of child labour must be preceded by the introduction of compulsory education since compulsory education and child labour laws are interlinked. Article 24 of the Constitution bars employment of child below the age of 14 years. Article 45 is supplementary to Article 24 for if the child is not to be employed below the age of 14 years he must be kept occupied in some educational institution. The Court in series of cases has unequivocally declared that right to receive education by the child workers is an integral part of right of personal liberty embodied in Article 21 of the Constitution. In M.C. Mehta v. State of Tamil Nadu The Supreme Court directed that children should not be employed in hazardous jobs in factories for manufacture of match boxes and fireworks, and positive steps should be taken for the welfare of such children as well as for improving the quality of their life.

In Goodricke Group Ltd v Center of West Bengal the Court held that it would be for the Centre and State/Union Territories to raise necessary resources to achieve the goal of providing free education. Recently Article 21-A has been inserted in the India Act, 2002 which provides that the state shall provide free and compulsory education to all children of the age of six to furteen years in such manner as the state may, by law, determine. In Unni Krishnan J.P. v State of Andhra Pradesh Justice Mohan observed “in educational institutions which are seed-beds of culture, where children in whose hands quiver the destinies of the future, are trained. From their ranks will come out when they grow up statesmen and soldiers, patriots and philosophers, who will determine the progress of the land.

3 Child Labour Welfare and the Locus Standi

The liberalization of the concept of locus standi, to make access to the court easy, is an example of the changing attitude of the Indian Courts. It is generally seen that the working children by and large come from the families, which are below the poverty line, and there are no means to ventilate their grievance that their fundamental rights are being breached with impunity. Keeping in view the pitiable conditions of the child workers, the apex court has shown its sensitivity towards the poor people by relaxing the concept of locus standi.

One important case in which Supreme Court entertained a letter, sent by post as public interest litigation was the Peoples Union for Democratic Rights v. Union of India Also known as the Asiad Workers case. The Supreme Court held that though the Employment of Children Act, 1938 did not include the construction work on projects because the construction industry was not a process specified in the Schedule to the Act, yet, such construction was a hazardous occupation and under Art.24 children under 14 could not be employed in a hazardous occupation. The right of a child against exploitation under Art.24 was enforceable even in the absence of implementing legislation, and in a public interest proceeding

They have no faith in the existing social and economic system”. A high water mark in the application of the Article 24 of the Constitution was reached in the decision of the Court in Salal Hydro Project v. Jammu and Kashmir wherein the Court reiterated the above stand. The Court maintained that child labour is an economic problem. Poor parents seek to argument their meager income through employment of their children. So, a total prohibition of child labour in any form may not be socially feasible in the prevailing socio-economic environment. Article 24 therefore, puts only a practical restriction on child labour. The Court further observed that so long as there is poverty and destitution in this country, it will be difficult to eradicate child labour.

4 Juvenile Justice

The Juvenile Justice (Care and Protection) Act, 2000 is enacted as human rights legislation and it is now in force in all State uniformly, repealing the entire Children’s Act enacted by states individually. This legislation deals with the two types of juveniles. “Juvenile in conflict with law” as defined under Section 2(1) and child in need of care and protection as defined under Section 2 (d). A juvenile or a child as defined under Section 2 (k) is a person who has not attained the age of 18 years. The penitentiary system shall comprise treatment of prisoners, the essential aim of which shall be their reformation and social rehabilitation. Juvenile offenders shall be segregated from adults and be accorded treatment appropriate to their age and legal status.

In Sheela Barse v. Union of India Ms.Sheela Barse, a dedicated social worker took up the case of helpless children below age of 16 illegally detained in jails. She petitioned for the release of such young children from jails, production of information as to the existence of juvenile courts, homes and schools and for a direction that the District judges should visit jails or sub-jails within their jurisdiction to ensure children are properly looked after when in custody. The Court observed that children in jail are entitled to special treatment. Children are national assets and they should be treated with special care. The Court urged the setting up of remand and juvenile homes for children in jails. In Sheela Barse v Secretary Children Aid Society the Supreme Court came forward to protect the rights of the children in the observation homes.

5 Adoption of Children

Adoption concerns two of our basic human concerns identity and family. A child’s rights to an identity and family are now universally recognized. They are enshrined in the United Nation Convention on the Rights of the Child, 1989.

The Activist Supreme Court of India in Lakshmikant Pandey v Union of India. This writ petition has been initiated on the basis of a letter addressed by one Laxmi Kant Pandey, an advocate practising in this Court, complaining of mal-practices indulged in by social organisations and voluntary agencies engaged in the work of offering Indian children in adoption to foreign parents. The letter referred to a press report based on “empirical investigation carried out by the staff of a reputed foreign magazine” called “The Mail” and alleged that not only Indian children of tender age are under the guise of adoption “exposed to the long horrendous journey to distant foreign countries at great risk to their lives but in cases where they survive and where these children are not placed in the Shelter and Relief Homes, they in course of time become beggars or prostitutes for want of proper care from their alleged foreign foster parents.” The petitioner accordingly sought relief restraining Indian based private agencies “from carrying out further activity of routing children for adoption abroad” and directing the Government of India, the Indian Council of Child Welfare and the Indian Council of Social Welfare to carry out their obligations in the matter of adoption of Indian children by foreign parents. This letter was treated as a writ petition and by an Order dated 1st September, 1982 the Court issued notice to the Union of India the Indian Council of Child Welfare and the Indian Council of Social Welfare to appear in answer to the writ petition and assist the Court in laying down principles and norms which should be followed in determining whether a child should be allowed to be adopted by foreign parents and if so, the procedure to be followed for that purpose, with the object of ensuring the welfare of the child. In this case the Supreme Court held that any adoption in violation of or non-compliance with may lead adoption to be declared invalid and expose person concerned with to strict action including prosecution. For years, social activists have used these directions to protect children and promote desirable adoptions. The Government of India framed a national policy in this regard.

6 Sexual Exploitation of Children

Human Rights are derived from the dignity and worth inherent in the human person. Human right and fundamental freedom have been retreated by the Universal Declaration of Human Rights. The human rights for women, including girl child age, therefore, inalienable, integral and indivisible part of universal human rights. All forms of discrimination on ground of gender are violative of fundamental freedoms and human rights. It would, therefore, be imperative to take all steps to prohibit prostitution. Eradication of prostitution in any form is integral to social weal and glory of womanhoods. Right of the child to development hinges upon elimination of prostitution. Success lies upon effective measures to eradicate root and branch of prostitution. In Bachpan Bachao Andolan v Union of India writ petition filed by HRLN, Suprem Court on 18.04.2011 has ordered for implementation of suggestions put forth during the hearing of this case, which will introduce significant reforms in existing child protection regime. The petition was originally brought in 2006 on issue of abuse and exploitation of children in circus industry. Court has ordered Central Government to bring a notification prohibiting employment of children in circus, to conduct raids to rescue children already working in circuses and frame proper scheme for their restoration. During the hearing in this case, several recommendations were put forth by petitioner and respondent, aimed on reforming existing legal and procedural mechanism on child protection. This recent order is just one among the several orders which may be given by Hon’ble Supreme Court in due couese of time as Hon’ble Court has made clear its intention to deal with issue of childrens exploitation in a long term and systematic manner. Assuring to deal with childrens exploitation firmly, Supreme Court has observed: “We plan to deal with the problem of childrens exploitation systematically”.

In Vishal Jeet v. Union of India Supreme Court in this case deals with some seminal questions relating to the sexual exploitation of children. Here it has been observed that it is highly deplorable and heart rending to note that many poverty stricken children and girls in the prime age of youth are taken to the ‘flesh market’ and forcibly pushed into “flesh trade” which is being carried on in utter violation of all cannons of morality, decency and dignity of mankind. In Gaurav Jain v. Union of India, The Supreme Court held that the children of the prostitutes have the right to equality of opportunity, dignity, care, protection and rehabilitation so as to be part of the mainstream of social life without any pre-stigma attached on them. The Court directed for the constitution of a committee to formulate a scheme for the rehabilitation of such children and child prostitutes and for its implementation and submission of periodical report of its Registry. 7. Sakshi v Union of India In this Public Interest Litigation matter, the Supreme Court of India asked the Law Commission to consider certain important issues regarding sexual abuse of children submitted by the petitioner and the feasibility of amendment to 375 and 376 IPC.

7 Rehabilitation of Child Prostitutes

The rescue and rehabilitation of the child prostitutes and children should be kept under the Nodal Department, namely; Department of Women and Child Development under the Ministry of Welfare and Human Resource, Government of India. It would devise suitable schemes for proper and effective implementation. The institutional care, thus, would function as an effective rehabilitation scheme in respect of the fallen women or the children of fallen women even if they have crossed the age prescribed under the Juvenile Justice (Care and Protection) Act. They should not be left to themselves, but should be rehabilitated through self-employment scheme or such measures as are indicated by the Supreme Court in this case. The juvenile homes should be used only of a short stay or relieve the child prostitutes and neglected juveniles from the trauma they would have suffered. They need to be rehabilitated in the appropriate manner. The details are required

To be worked out by meaningful procedure and programmes. In the light of the directions already given by this court from time to time to the central government state governments and Union Territory Administrators, adequate steps should be taken to rescue the prostitutes, child prostitutes and the neglected juveniles. They should take measures to provide them adequate safety, protection and rehabilitation in the juvenile homes manned by qualified trained social workers or homes run by NGOs with the aid and financial assistance given by Government of India or state government concerned. A nodal committee with the public spirited NGOs, in particular women organizations women members should be involved in the management. Adequate encouragement may be given to them. The needed funds should be provided and timely payments disbursed so that the scheme would be implemented effectively and fruitfully.

8 Conclusion

The brief survey of the above mentioned cases shows that the activism of the Indian Supreme Court to protect the children from various type of exploitation. Although the Supreme Court made laudable directions and suggestions in many instances to protect basic rights of poor children, unfortunately these directions and suggestions are not followed and implemented by the government machinery effectively. In this regards, the performance of the Indian Judiciary stands out as a signal contribution to the implementation of human rights generally and that of Child Rights in particular.

As such in the M.C. Mehta v. State of Tamil Nadu and Goodricke Group Ltd v Center of West Bengal Supreme Court of India emphasized on national Constitution and international instruments, including the Convention on the Rights of the Child, the Indian government is required to ensure that children do not engage in hazardous work. In Lakshmi Kant Pandey v Union of India with object of ensuring the welfare of the child J. Bhagwati directed the Government and various agencies to follow some principles as their constitutional obligation to ensure the welfare of the child. Also judiciary has taken the lead to save the child from exploitation and improve their conditions. To mention a few, the Asiad case (1981), L.K.Pandey case (1994), M.C.Mehtas case (1991), Vishal Jeet v. Union of India (1990), and Gaurav Jain v. Union of India (1997) are some of the famous decisions where the judiciary has shown enough courage to uphold the interests of the children and spared no one to improve the working conditions of the child workers. The judiciary has always made concrete efforts to safeguard them against the exploitative tendencies of their employer by regularizing their working hours, fixing their wages, laying down rules about their health and medical facilities. The judiciary has even directed the states that it is their duty to create an environment where the child workers can have opportunities to grow and develop in a healthy manner with full dignity in consensus of the mandate of our constitution.

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