Print edition : July 11, 2014

Children from Jharkhand at the Pezhamkara orphanage where they were sheltered on their arrival by train at Palakkad. Photo: K. KRISHNA KUTTY

Children brought without valid documents being sent back by train from the Palakkad Junction station under government supervision. Photo: K. KRISHNANA KUTTY

The detention, by the Railway Police at Palakkad Junction, of 579 children from northern and eastern States being taken to orphanages in Kerala without completing the legal formalities triggers a controversy.

THE recent incidents at the Palakkad Junction railway station in which the Railway Police detained 579 children who arrived there in two batches, and arrested eight persons travelling along with them on charges of trafficking in minors, have put the spotlight on the increasing flow of children from poor families in the northern and eastern States to orphanages in Kerala.

The first lot of 226 boys and 230 girls, aged between five and 13, was from Bihar and Jharkhand and had arrived at Palakkad by the Patna-Ernakulam Express at around 2-30 p.m. on May 24. The second group —children aged five to 15, from “other States”—reached Palakkad at around 9 p.m. the next day in the Guwahati-Thiruvananthapuram Express. The children had travelled under extremely vulnerable circumstances, crammed in a few compartments in the two trains, and, except for the few adults who accompanied them, generally had no protection whatsoever throughout their 2,700-kilometre journey. Railway or police units in the many States and railway zones through which the trains passed had failed to intervene or ask questions. The eight men arrested initially by the Railway police at Palakkad hailed from Bihar, Jharkand and West Bengal. Cases were filed against them under Section 370(5) of the Indian Penal Code (IPC), which deals with trafficking in minors, and they were subsequently transferred to the Crime Branch for further inquiry. The majority of the children had travelled without tickets.

According to the report submitted to the Kerala State Commission for Protection of Child Rights by the Palakkad District Collector, 182 of the 456 children who arrived on May 24 had “cards” issued by the Mukkam Muslim Orphanage, located near Kozhikode.

They were reportedly residents of the well-known orphanage, run by a prominent Muslim religious organisation in the State, and were returning after their holidays in their home States. But the men who were taken into custody could not produce the required documents for the other 274 children, who came with them reportedly to join the orphanage.

The Collector’s report said that the authorities of another institution, the Anwarul Huda Orphanage, situated at Vettathur in Malappuram district, were at the railway station to receive the second lot of 123 children, of which 59 were, similarly, new recruits. Others were residents of the orphanage who returned after holidays.

According to the State Child Rights Commission, the provisions of the Juvenile Justice Act, 2006, regarding inter-State transfer of children and those of the Orphanage Control Board rules and regulations as amended in 2013 have not been followed in both cases.

Children from other States can be admitted in orphanages in Kerala only with the permission of the State Orphanage Control Board. Moreover, recognised orphanages that wish to admit children from other States should submit an application along with the recommendations of the respective State government, destitute certificate from the respective village officer, and identity documents of the child and obtain permission in advance from the Orphanage Control Board.

As legally mandated, the detained children were first put under the care of the Child Welfare Committees in Palakkad, Kozhikode and Thrissur. The majority of the new recruits in the two lots were later handed over to their parents, who arrived later on with documents, or were sent back home under the supervision of officials from both the States, as per the directions of the Commission.

However, the eight men who accompanied the children were arrested under Section 370(5) of the IPC. It defines “trafficking” as an offence committed by a person who “for the purpose of exploitation”, recruits, transports, harbours, transfers or receives a person or persons by “using threats, force, or any other form of coercion”, or “by abduction, or by practising fraud, or deception, or by abuse of power, or by inducement, including the giving or receiving of payments or benefits”, in order to “achieve the consent of any person having control over the person recruited, transported, harboured or receive”.

Section 370 also says that “exploitation” would mean any act of physical or sexual exploitation, slavery or practices similar to slavery, servitude, or the forced removal of organs. Moreover, the consent of the victim is immaterial in determining whether the offence of trafficking has been committed.

The implication that children in such large numbers were brought to Kerala as part of a trafficking racket and perhaps for exploitation will only be proved or dispelled after the investigations by the State Crime Branch and those initiated by the governments in Jharkand, Bihar and West Bengal are completed.

However, despite the serious issues of child safety and security that the incidents brought forth, they soon also became the catalyst for an unsavoury controversy with communal and political overtones in Kerala where the Muslim League shares power in the Congress-led United Democratic Front (UDF) government. “Attempts to describe it as trafficking of children should be viewed as highly motivated with ulterior intentions,” the party’s State general secretary K.P.A. Majeed said.

On the one side, it was argued that the genuine mistakes or lapses on the part of the orphanage authorities or their agents in strictly following the legal requirements regarding such inter-State transfer of children were being blown out of proportion as part of an agenda to whip up a controversy since the institutions involved were under Muslim managements.

On the other, there were wild allegations that the incidents indicated dubious motives or were clearly a reflection of child trafficking and that the children were eventually being exploited, sexually or otherwise, that many of them were being indoctrinated or recruited by fundamentalist groups, or that the girls were being forced into early marriages.

Chief Minister Oommen Chandy expressed doubts whether the incidents could be termed as “trafficking” but said there were “procedural lapses” and “lack of transparency” in the way the children were brought to the State. A Division Bench of the Kerala High Court criticised the State government severely for taking a stand without conducting a proper investigation.

It is important to place this controversy in the context of changes in Kerala society in general in the past few decades and of the increase in the number of orphanages in the State during that period.

According to official estimates, there are more than 2,000 recognised orphanages in Kerala today that admit children, destitute women and the aged. About 1,100 of them are meant only for children. An unknown number of unrecognised orphanages also exist.

Over a 1,000 recognised institutions are run by Christian charitable organisations and nearly 300 are under Muslim managements. A large majority of them are well-established institutions with an impeccable record of charity and humanitarian work and many of their residents have made their mark in various walks of life.

The Mukkam Muslim Orphanage, established in 1956, is well known for its charitable activities and has won several awards. Today, it has over 25 institutions functioning under it. It is run by the Samastha Kerala Jam’iyyathul Ulama, and the chairman of its advisory board is Panakkad Sadique Ali Shihab Thangal, the Muslim League president.

The other side of the story is equally interesting. The majority of these orphanages today have assets worth crores of rupees and regularly receive donations from individuals and organisations and philanthropist groups from India and abroad, especially, from West Asian countries.

Among them are people who consider the contributions to these orphanages as their religious duty. A number of such orphanage managements also run several other institutions, schools, colleges, vocational and technical education institutes and teacher training colleges being the most popular among them.

Allegations of trafficking in and exploitation of children would sound preposterous in the context of many of these well-run institutions. But it is important to understand that this charity network—of prospering mother orphanages, their attendant institutions and channels of financial support—is hinged on a crucial factor: a regular flow of children into these institutions.

Until recently, especially among deeply religious and conservative sections of Kerala society, and for various reasons, including economic and educational backwardness, reluctance to accept family planning, prevalence of polygamy, religious laws that allowed easy divorce and so on, the problems of destitution and orphaned children were common. But with the spread of education and the general economic and social advancement of Kerala society in recent decades, even as orphanages and their attendant institutions grew bigger and more prosperous, they also became increasingly unsure of getting a matching supply of wards from within the State.

A member of the State Child Rights Commission told Frontline that initially such a situation became a boon for marginalised groups or, for example, street children or those from the slums or resettlement colonies in Kerala, with many of them being brought under the care of such orphanages. But the next stage, in the past 15 years, perhaps, saw a gradual decrease in the number of children needing to join such institutions.

Orphanage authorities soon realised that philanthropy tended to encourage vibrant institutions and ignored failing ones. They now know that government grants, donations and other funding will drop dramatically if impressive orphanage buildings remained empty. If the numbers of students in schools run by the orphanages fall, the government will allow only fewer divisions in each class the next year around. Invariably, that would threaten the parallel business of annual teacher appointment.

That is why orphanages in Kerala became an attractive destination for poor children from States such as Jharkhand, Bihar and Uttar Pradesh. “It perhaps started as a trickle. The promise of free food and shelter and higher education in a familiar religious setting and the impressive facilities gradually began to attract more and more children. As they went on holidays, news spread and more children began to arrive. And, because it was also a question of survival for the institutions, they perhaps began to employ agents to recruit more children. The operations grew in scale until the arrival of children herded into two trains raised the alarm and allegations of trafficking,” the Commission member said.

He also said that although it remained to be proved before the High Court that the intention was not trafficking in children for exploitation but only to find wards for the institutions, clearly laws had been flouted and there was a need to curb such inter-State transport of children. “None of the children were ‘orphans’ and we need to think why their parents agreed in the first place to send them to a place so far removed from their familiar social, cultural and linguistic surroundings.”

The governments in the respective States of origin have been jolted out of their complacency by these incidents and some of them have announced measures to curb such mass transfer of children and the recruitment of children by agents. Within Kerala, the incidents have helped put the focus on the activities of mushrooming orphanages.

Justice J.B. Koshy, Chairman of the Kerala State Human Rights Commission, told Frontline that while recognising the exemplary humanitarian work done by the majority of such homes for children, it should not be forgotten that there are some rotten apples among them.

“The commission continues to receive oral complaints on the plight of children in many of them. Many complainants would seek anonymity for fear of filing open complaints. Last year, we found that 66 criminal cases were registered against sexual abuse, missing children, and so on in such homes, most of which do not even maintain proper records of their inmates or of the funds they receive,” he said.

In April, the State Child Rights Commission had ordered all child-care institutions in Kerala to be necessarily registered under the Juvenile Justice (Care and Protection of Children) Amendment Act, 2006, within three months, a requirement that the Act itself had mandated seven years ago. Such inclusion would have ensured closer government monitoring of these institutions, specified standards for the service provided by them, and given the authorities more powers to grant or withdraw certification of a children’s home.

The commission said in its order that over 1,100 orphanages, where more than 30,000 children resided, were now registered under the (much more lenient and outdated) Orphanages and Other Charitable Homes (Supervision and Control) Act, 1960.

A member of the commission told Frontline on condition of anonymity that politically powerful institutions that have established themselves under that 1960 Act had ensured that the State Social Welfare Department granted exemption to institutions already registered under the 1960 Act from further registration under the Juvenile Justice Act.

In August 2013, the State Human Rights Commission initiated a comprehensive audit of the functioning of orphanages in Kerala following (mostly oral) complaints it had received regularly.

Justice Koshy said many child-care homes were refusing to participate in the survey. The audit will form the basis of the commission’s recommendations to the government for changes in the laws governing orphanages, in order to prevent human rights violations that are obviously taking place in many aberrant institutions.

While hearing the petition filed by a non-governmental organisation, Thampu, seeking a comprehensive inquiry into the recent incidents, the High Court observed that it viewed the illegal transport of children with “fear and concern”. It also said the State’s contention that it did not amount to trafficking could not be taken at face value; that there was reason to suspect the involvement of powerful elements in the incidents; that it has come to be known that children had been similarly brought to the State on earlier occasions, too; that there were media reports about missing children thus brought to the State; and that the government was unable to find out what happened to such children.

The court has, therefore, directed the government to conduct a detailed inquiry to bring out the truth as it had become clear, prima facie, that illegal activities had taken place. The court has also suo motu impleaded the States of Jharkhand, Bihar and West Bengal and the Ministry of Railways in the case.

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