Delhi High Court
Bachpan Bachao & Ors. vs Union Of India & Others on 24 December, 2010
Author: A.K.Sikri
Reportable
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WP (Crl.) No.82 of 2009
WP (Crl.) No.619 of 2002
With
WP (Crl.) No.879 of 2007
Reserved On: May 24, 2010.
% Pronounced On: December 24, 2010.
1) W.P. (Crl.) No.82 of 2009
BACHPAN BACHAO & ORS. . . . Petitioners
through : Mr. H.S. Phoolka, Sr. Advocate
with Ms. Sunita Tiwari, Advocate.
VERSUS
UNION OF INDIA & OTHERS . . .Respondent
through: Mr. Pawan Sharma, Standing
Counsel for the State.
Mr. Sachin Dutta with Mr. Shariq
Mohammed and Ms. Poorva
Nanawati, Advocates and Mr.
Baldev Malik, Advocate for the
UOI.
Ms. Aparna Bhat with Ms.
Madhulika M., Advocates for the
DCFW.
Ms. Meera Bhatia, Adv. for Labour
Department.
2) W.P. (Crl.) No.879 of 2007
SHRAMJEEVI MAHILA SAMITI . . . Petitioner
through : Mr. Colin Gonsalves, Sr. Advocate
with Mr. Divya Jyoti Jaipuria, Ms.
Ritu Kumar and Mr. Tariq Adeeb,
Advocates.
VERSUS
STATE & Others . . .Respondent
WP (Crl.) No. 619 of 2002 & Others Page 1 of 54
through: Mr. Pawan Sharma, Standing
Counsel for the State.
Mr. Sachin Dutta with Mr. Shariq
Mohammed and Ms. Poorva
Nanawati, Advocates for the UOI.
Ms. Meera Bhatia, Adv. for Labour
Department.
3) W.P. (Crl.) No.619 of 2002
KALPANA PANDIT . . . Petitioner
Through: Ms. Aparna Bhat with Mr. David
A. Advocates.
VERSUS
STATE . . . Respondent
Through: Mr. Pawan Sharma, Standing
Counsel for the State.
Mr. Sachin Dutta with Mr. Shariq
Mohammed and Ms. Poorva
Nanawati, Advocates for the UOI.
Ms. Meera Bhatia, Adv. for Labour
Department.
CORAM :-
HON'BLE MR. JUSTICE A.K. SIKRI
HON'BLE MR. JUSTICE AJIT BHARIHOKE
1. Whether Reporters of Local newspapers may be allowed
to see the Judgment?
2. To be referred to the Reporter or not?
3. Whether the Judgment should be reported in the Digest?
A.K. SIKRI, J.
1. In all these three writ petitions filed in public interest, a disturbing
problem which our society faces, day in and day out, has been
highlighted. This conundrum relates to child trafficking. It is this
menace prevailing in our society, which has been raised in all
these writ petitions, albeit from different perspective. However,
the primary objective and aim of all these writ petitions remains
the same, viz., how to eradicate, or at least reduce to significant
level, this peril. In order to appreciate the issue, we shall take
note of the facts which have led to the filing of these writ petitions.
WP (Crl.) No.619 of 2002
2. Kalpana Pandit is the petitioner in this case whose daughter is
espoused by social activist/Advocate, Ms. Aparna Bhat. The
petitioner is a domestic servant (illiterate lady), driven by poverty,
working as domestic servant in various houses from time to time
to earn the minimum livelihood for her family and sustaining the
family for fulfilling the daily needs. Her family has roots in West
Bengal. However, due to acute poverty and incapable to get any
employment, she came to Delhi sometime in 1995-96, i.e. five to
six years ago before filing this writ petition. The respondent No.4,
viz., Sahyog Placement Sanstha is a placement agency, which
makes arrangements for providing domestic helps to the residents
of this city. Sometime in March, 1999, the petitioner handed over
her daughter to this Sanstha, whose sole proprietor is Sunita Sen,
for placement of her daughter as domestic help in some residence.
The reason was that the petitioner had fallen serious sick for a
long duration, which compelled her to stay at home, as she was
not able to work because of the said sickness. Family, in any case,
needed sustenance as there was nobody else to support the family
financially, no alternative was left to the petitioner to compel her
daughter Jharna to take up work.
3. Jharna started working as domestic help at the residence of
respondent No.4. She believed that her daughter would be safe
and secure with Sunita Sen. According to the petitioner, she did
not know that Sunia Sen, who is one of placement agent would
place Jharna as domestic help in other people‟s houses.
4. It is averred in the petition that in April 1999 when the petitioner
recovered from her illness, she went to the house of Sunita Sen to
meet her daughter and then only she came to know that Jharna
was working as housemaid at the residence of some Mr. & Mrs.
Kaul in Noida, Uttar Pradesh. She was shocked and surprised as
no prior consent of the petitioner was obtained before taking such
a step and she was not even informed about this. The petitioner
pleads that with great difficulty, she managed to get the phone
number of her daughter‟s employer and tried to contact her
daughter, Jharna on that phone. However, she was not permitted
to talk with Jharna. The petitioner was disturbed and tensed at the
sudden disappearance of her daughter, but could not be able to
comprehend whom to approach for the help. She went to the
respondent No.4 again and respondent No.4 had arranged the
petitioner to talk with her daughter Jharna on telephone.
However, she had no idea where the respondent No.4 had called.
She was concerned and worried about the safety of her growing
daughter and wanted to meet her on the occasion of Raksha
Bandhan. She along with her son went to the Noida house, the
address whereof was provided to the petitioner on phone.
However, she could not be able to meet her daughter there. She
made repeated attempts for this purpose by visiting Noida again
and again, but didn‟t succeed. Her continues requests made to
respondent No.4 also did not yield any results. She even tried to
approach Mehrauli Police Station, but was not provided with any
help or guidance there as well. While she was reconciling with the
tragedy that had struck her, after a lapse of one and a half years
or so, she was informed that her daughter Jharna was missing
since 29.08.2000 and the missing complaint had been lodged by
Jharna‟s employer on 06.09.2000 to enquire about her daughter.
The petitioner was shocked to hear this and got in touch with the
respondent No.4. The respondent No.4 even refused to hand over
the copy of the alleged missing complaint. In these
circumstances, the petitioner had no other option left but to
approach the police station and to seek help to trace her
daughter. She lodged an FIR in the Vasant Kunj Police Station on
02.02.2001 under Section 363 of Indian Penal Code. That was
registered as FIR No.50 of 2001. However, according to her, no
concrete steps were taken to investigate the allegation mentioned
in the FIR. The petitioner, viz., had approached the Juvenile
Welfare Board (JWB) and filed a case. The JWB acted promptly on
the petitioner‟s complaint and summoned the respondent No.4 to
attend the hearings but they did not consider it as important
enough to attend the hearing and give the information they had
regarding the whereabouts of the petitioner‟s daughter. However,
case did not progress much due to non-appearance of the
respondent No.4. The JWB had at last addressed a letter to the
Deputy Commissioner of Police, Crime Branch on 27.08.2001 and
requested for a thorough investigation into the incident, but no
headway was made. She waited for quite some time, as she was
in dark about the whereabouts of her daughter, Jharna. On
23.05.2002, she filed the instant petition in the nature of habeas
corpus seeking direction against the respondent No.4 to produce
the petitioner‟s daughter, Jharna forthwith. The State of NCT Delhi
is impleaded in petition as the respondent No.1, the Commissioner
of Police as respondent No.2, S.H.O., Vasant Kunj Police Station as
respondent No.3, Sahyog Placement Sanstha (owned by Ms. Sunita
Sen) as respondent No.4 and Juvenile Welfare Board was
impleaded as respondent No.5.
5. Obviously, it was treated as habeas corpus petition and notice was
issued to all the respondents on 30.05.2002. It was also directed
that notice to the respondent No.4 be served through the S.H.O.,
Police Station, Vasant Kunj. Juvenile Welfare Board will ensure
that record is produced in Court alongwith the statement of
respondent No.4 recorded by it. On the next date, i.e.,
31.05.2002, after perusing the report of the Probation Officer from
JWB and the progress report from the investigation carried out by
the Police in FIR No.50/2001, this Court deemed it fit and proper to
transfer the case to Anti-Kidnapping Cell, Crime Branch, Delhi
Police to carry out further investigation and trace out the
petitioner‟s daughter. The Court also directed the employer of
Jharna, viz. Mr. Veer Kaul and Mrs. Pammi Kaul to be impleaded as
respondents. The matter went on from time to time, thereafter
giving directions to the police time and again to trace out the
missing girl, Jharna.
6. At the same time, the issue of exploitation of children working as
domestic helps and children going missing in the process was also
taken note of. During the discussions in this case, it transpired
that many such placement agencies would place children, initially
at some residence for domestic helps, but such children would
ultimately be forced into the flesh-trade. Therefore, the Court also
deemed it proper to address this issue as well in that proceedings,
the petition was also treated as public interest litigation. Keeping
the importance of the issue involved, an NGO known as Butter
Flies intervened as was impleaded as respondent No.8. This
aspect was highlighted in the order dated 04.10.2004 passed in
this writ petition and we deem it proper to reproduce the same:
"Two distinct issues arise for consideration in this writ
petition. One of these relates to the tracing and production
of the missing minor girl named Jharna Pandit. Reports
submitted by the investigating agency from time to time
show that steps to trace out the missing girl have been
taken but without much success. Ms. Mukta Gupta counsel
for the respondent submits that efforts to trace the missing
minor will continue and that as and when she is recovered,
she will be produced in this Court for appropriate orders.
We need only say that the investigating agency shall take
effective steps in the matter and report the progress to this
Court from time to time.
The second question that arises for consideration, relates to
the functioning of different placement agencies working in
the NCT of Delhi. It is pointed out by Ms. Arpana Bhatt that
there are as many as 123 such agencies functioning in
Delhi. These agencies apart from other placement work
carried on by them engage themselves in placement of
children in various establishments including as domestic
help. There is, according to Ms. Bhatt, no statutory control
over the functioning of these agencies. The result is that
children who are either picked up from the streets or
brought from various other States to Delhi are first placed
as domestic help and later shifted to other more hazardous
work including some who are pushed into prostitution. The
absence of any regulatory control over the functioning of
these agencies which are run on commercial lines for profit,
according to the learned counsel, defeats the very spirit of
the Juvenile Justice (Care and Protection of Children) Act
2000. She submits that while section 31 of the said Act
vests the Juvenile Child Welfare Committees with extensive
powers, the absence of appropriate rules and regulations
for the exercise of that power has virtually rendered the
said provision nugatory. She states that the Child welfare
Committees functioning in Delhi have received a number of
complaints regarding abuse of the children working as
domestic helps in households. Verification of these
complaints have, according to her, proved that the children
have been subjected to various kinds of indignities and
harassment including sexual abuse. The record of the
committees, if summoned for perusal would, according to
the learned counsel, enable this court to issue directions for
effectuating the provisions of the Act.
Ms. Mukta Gupta, learned counsel for the respondent, on
the other hand, submits that the Government of Delhi
would have no objection to the issue raised before this
Court being examined and appropriate guidelines being
evolved regulating the exercise of powers by the Child
Welfare Committees under the Act. She submits that the
Child Welfare Committees can be asked to submit a report
regarding the nature of the complaints received by them
alleging abuse of children in domestic and other
establishments and the remedial steps which the
committees have taken in this regard. She further states
that the State Government can examine the matter more
closely in order to provide an appropriate statutory
framework for the exercise of the powers by the
Committees by framing of rules under Section 68 of the Act.
In the circumstances, therefore, we direct that the Child
Welfare Committee in Delhi shall, before the next date of
hearing, submit to this Court a detailed report regarding the
complaints received by them about child abuse, in case
where children are placed with households to work as
domestic servants/help, the nature of the allegation as also
the action which the committees have taken on the same.
The Secretary, Social Welfare Department, Government of
Delhi shall also remain present and indicate whether any
rules have been framed or can be framed in terms of
Section 68 read with 31 of the Act aforementioned to
regulate the exercise of the powers by the committees and
in particular to regulate the functioning of the placement
agencies dealing with domestic child labour. The
chairpersons of the two committees shall also be requested
to remain present in the Court on that day along with the
relevant record."
7. Magnitude of the problem was taken note of in the orders of
25.10.2004 when the Chairman of Child Welfare Committee
submitted their report in this behalf. We would be well-advised to
reproduce that order as well:
"We have heard counsel for the parties at some length. The
Secretary, Social Welfare Department, Govt. of Delhi and
the Chairman of one of the Child Welfare Committees
functioning in Delhi are both present in person in obedience
to the direction issued by this court on 4th October, 2004.
The Chairman of the Child Welfare Committee stated that
there were a large number of complaints received by the
Committee from time to time suggesting abuse of domestic
child labour. She has filed before us a list of such cases in
which complaints of abuse and maltreatment were received
by the Committee. She submits that the Committee is
often handicapped in dealing with such complaints because
of lack of particulars regarding the placement agency and
the employers.
The Secretary, Social Welfare Department, Govt. of Delhi,
on the other hand, submits that the question whether rules
can and ought to be framed to regulate the functioning of
the placement agencies is a matter that shall have to be
examined in greater detail at the Government level, before
any definite step is taken in these proceedings. He seeks
six weeks‟ time to have the matter examined and to place
on record an affidavit indicating the stand of the Delhi State
Government in regard to the need and possibility of framing
of rules under Sections 31 and 68 of the Juvenile Justice
(Care and protection of Children) Act, 2000. These
proceedings shall, therefore, stand adjourned to be posted
again on 14th January, 2005, by which time the question
whether rules can and ought to be framed under the Act
aforementioned, shall be examined by the Government and
a clearcut stand taken in that regard in an affidavit shall be
filed in these proceedings.
Order be given dasti to both the parties."
8. Jharna was ultimately traced out and the custody was handed over
to the petitioner. Thereafter, this petition has proceeded to tackle
the issues to regulate the functioning of the placement agencies
especially who were dealing with domestic child labour and
provides women and children as domestic help so that such
incidents do not occur in future through the instrumentalities of
these placement agencies.
W.P. (Crl.) No.82 of 2009
9. The petitioner in this writ petition as „Bachpan Bachao‟, another
N.G.O. In this public interest litigation, the problem which is
highlighted is that several thousand minors are kidnapped and
trafficked from various states and brought to Delhi and sold for the
purposes of prostitution, begging, drugpeddling, slavery, forced
labour including bondage, and for various other crimes and who
are still stranded in various parts of Delhi against their wishes and
are waiting to be rescued. Thus, prayer herein made to direct to
take respondents to take appropriate measures for the immediate
rescue and release of all such minor children. Further, prayer is
also made to the effect that directions are issued to the
respondent for the protection of fundamental rights of such
children and for their proper rehabilitation, social reintegration and
education who are released from various illegal placement
agencies and other places in the NCT of Delhi. Direction is sought
to the effect that the respondent should formulate and to bring
into immediate effect a specific and stringent law to deal with
such illegal placement agencies.
10. Highlighting the problem, all these placement agencies and
absence of law to regulate them, it is averred that according to a
survey, only 173 placement agencies are running in districts which
is not correct at all. In fact, about 2300 illegal placement agencies
are running at present in the GNCT of Delhi and in Saraswati Vihar
area alone which comes under the jurisdiction of Saraswati Vihar
Police Station (North West District) form where 39 children were
rescued, there are more than hundred placement agencies which
are running illegally. The most common areas in which illegal
placement agencies are running without any fear or restrictions in
Delhi are Saraswati Vihar, Shakurpu J.J. Colony, Rani Bagh, Punjabi
Bagh, Rohini, Pitampura, Chirag Dilli, Malviya Nagar, Chitranjan
Park, Govindpuri, Sangam Vihar, Khanpur, Kotla Mubarakpur,
Jammia Nagar, Okhla, Tuglakabad, Seelampur, Usmanpur,
Welcome Colony, Laxminagar, Model Town, Kingsway Camp,
Lajpatnagar and Janakpuri. That most common states for human
trafficking are State of Bihar, Jharkhand, Orissa, West Bengal,
Chattisgarh, U.P and Nepal from where mostly girls are kidnapped
and trafficked. The most vulnerable districts in various states are
as follows:
Districts in Bihar : Gaya, Nawada, Aurangabad.
Districts in Jharkhand : Ranchi, Simdega, Gumla, Laterhar,
Dumka, Godda, Pakur, Lohardugga.
Districts in West Bengal : Midnapur, 24 Pargnas, Maldha,
Silliguri.
Districts in U.P. : Gonda, Bahraich, Auraiya.
Districts in Nepal : Sihaha, Saptri, Sunsari, Makanpur,
Kanchanpur, Jhapa and
Mahendrapur.
11. The petitioner has also stated the circumstances under which this
problem was brought to its notice and the steps are yet to be
taken in that behalf. It is mentioned that on 09.01.2009,
Hembahadur had approached the office of Bachpan Bachao
Andolan (BBA) and requested to help in the rescue of his sister
and sister-in-law from Ajay Thapa placement agency. In his
application, he mentioned that his sister, sister-in-law and her two
friends were promised to get job by Ajay Thapa. The said
Hembahadur was placed by Ajay Thapa in a factory and his sister,
sister-in-law and their two friends were sent to work as domestic
help. For the last one year, Hembahadur was unable to contact
his sister and her friends. Ajay Thapa refused to provide him the
contacts/addresses of his sister and other girls. This raised serious
doubts in Hembahadur‟s mind that the girls had been sold by Ajay
Thapa and he got very concerned for their welfare and under
these circumstances, he came in contact with BBA activists and
decided to take steps for finding and rescuing the girls.
12. The petitioner approached the Delhi Commission for Women on
12.01.2009 and with its help, thereafter; a joint rescue operation
was conducted on 13.01.2009. In the said operation, 35 girls and
03 boys were rescued from some of these placement agencies
already named above. 23 out of 35 girls and three boys were
below the age of 14. During the raid, the team of Delhi
Commission for Women and the activists of Bachpan Bachao
Andolan and officials of Delhi Police saw a lot of objectionable
material including pornographic CDs, illicit literature, pregnancy
test kits and contraceptives, etc. raising doubts about the real
purpose behind running of these placement agencies. All the
rescued girls and boys were trafficked from Jharkhand and West
Bengal. Three rescued girls told that they were not given food
from last three days. Most of the girls were staying at the office of
placement agencies and forced to sleep in the rooms of boys. A
clear picture of the same can be ascertained from the CD
containing news report by a TV channel and the transcripts of the
report which is being filed along with this writ petition. It is also
stated that DCW had first lodged a complaint before Police Station,
Saraswati Vihar and then took them to Child Welfare Committee of
Delhi Government, who sent these 23 minor girls to Nirmal Chaya
and Nari Niketan for a short stay. The custody of three boys was
given to Bachpan Bachao Andolan - Mukti Ashram.
It is in this backdrop that various prayers including those
mentioned above have been made in this writ petition.
W.P.(Crl.) No.879 of 2007
13. This writ petition is filed by Shramjeevi Mahila Samiti, which is an
N.G.O. operating in Kolkata, West Bengal. Similar problem of
trafficking, kidnapping, forced labour and bondage of 298 women
and children is spelt out in this petition. These women and
children were brought to Delhi from different villages of West
Bengal. It is stated that on reaching Delhi, they were sent to
certain households and some of them had been shifted from time
to time in such a manner that the parents/relatives of the victims
are now unable to get in touch with them. Not only the promised
wages are not paid, but the women and children are being forcibly
confined against their wishes and if any person attempts to get in
touch with these victims, then those persons were threatened by
the placement agencies. Moreover, the petitioner has even
blamed the police force and has levelled the allegations that these
placement agencies are doing aforesaid illegalities in collusion
with police. According to the petitioner, they came to know of the
problem when in May, 2007, over 150 families from West Bengal
had approached the petitioner‟s organization and complained that
their wives, sons and daughters had been taken by certain
placement agents to Delhi after promising to provide them with
employment and thereafter, these persons are not contactable
and it is feared that their family members are being exploited.
Accordingly, the petitioner prepared a chart of the complaints
being made and a copy of the said chart dated NIL is attached.
The parents/relatives of the trafficked victims brought to the
notice of the petitioner that they have lost the contact with their
wives/children and that when they tried to contact the placement
agencies, they were not provided with the appropriate information
regarding the whereabouts of their family members and some of
them were threatened also. That they fear for the lives and safety
of their dear ones. They all said that the money which was
proposed to be paid by the way of salary, was never paid and that
only false assurances were given to them. The petitioner has
prepared a compilation of over 150 complaints made to them by
the parents/relatives of the trafficked victims and craves leave to
refer to and rely on the said compilation. Some of the persons
who were earlier employed and who had managed to get back to
West Bengal had also met the petitioner‟s organization and even
complained that they were physically compelled to do forced
labour. Some of them complained of sexual abuse by the
employer. Petitioner has included these complaints along with the
earlier compilation mentioned. At the same time, 10 agents who
had taken the persons to Delhi also contacted the petitioner
organization. They complained that the placement agencies were
not paying and not ensuring payment to the persons as promised.
No accounts were being kept. Details of the whereabouts of the
persons including minors were not being provided. That they had
received complaints from the persons including minors of beatings
and sexual abuse and they had witnessed these as well. Those
who were unwilling to work were being forced to work. At the end
of work the dues were not being paid nor any of the accounts were
shown. Vouchers were also being forged with interpolations made
in the vouchers regarding the amount paid so as to indicate larger
amounts than the amounts that were actually paid. Some thumb
impressions were taken on the vouchers, which did not appear
genuine. In some cases the cheques had bounced. The agents
were also threatened by the placement agencies. The agents
were told that unless they provide new labour, the persons
currently working would not be allowed to leave. The agents had
also complained that some of the children were "missing" and
they feared for the lives and safety of these missing children.
14. Members of the petitioner-NGO, in these circumstances, came to
Delhi on 01.07.2007 and met various authorities including Joint
Labour Commissioner, Police, etc. However, their encounter with
these authorities was of no help and the allegations of disinterest
and inaction on their part are stated in detail, which need not be
reproduced. Circumstances are being stated under which they
could have rescued one minor girl, Kalpana Sardar, aged 12 years,
who has been placed in the shelter home of Prayas in accordance
with the orders of the Child Welfare Committee. She gave a
statement in writing to the police station narrating her harrowing
experience and malpractices adopted by the placement agencies
to which she was sent to as domestic helps. Similar circumstances
of two more minor girls having rescued by the petitioner are
stated and various placement agencies are impleaded as
respondents. Apart from the prayer in the nature of habeas
corpus that 256 women and children be produced before this
Court, it is also prayed that proper action should be taken against
these agencies and recover the wages of, to rehabilitate, and to
pay compensation to, the women and children concerned.
15. We may point out that by giving directions to the Police in this
petition from time to time, most of the persons mentioned in the
list in Annexure P-I have been rescued.
Re: The Problem and Concerns:
16. It is in the aforesaid factual backdrop of all the three cases, the
issue with which we are concerned relates to the forced child
labour and regulation of placement agencies. Because of the
commonalities of this issue in these three petitions were listed
together from time to time and common orders were passed
therein from a particular stage. However, various directions were
given in this behalf from time to time by this Court on the basis of
which steps were taken by the official respondents. Before we
take stock of those directions and also the measures, which have
been taken by the respondents in addressing the issue, it would
be necessary to understand the genesis of problem and the
circumstances under which it arises.
17. Trafficking in women and children is the gravest form of abuse and
exploitation of human beings. Thousands of Indians are trafficked
everyday to some destination or the other and are forced to lead
lives of slavery. They are forced to survive in brothels, factories,
guesthouses, dance bars, farms and even in the homes of well-off
Indians, with no control over their bodies and lives. The Indian
Constitution specifically bans the trafficking of persons. Article 23,
in the Fundamental Rights, Part III of the Constitution, prohibits
"traffic in human beings and other similar forms of forced labour".
Though there is no concrete definition of trafficking, it could be
said that trafficking necessarily involves movement/transportation,
of a person by means of coercion or deceit, and consequent
exploitation leading to commercialization. The abusers, including
the traffickers, the recruiters, the transporters, the sellers, the
buyers, the end-users etc., exploit the vulnerability of the
trafficked person. Trafficking shows phenomenal increase
with globalization. Increasing profit with little or no risk,
organized activities, low priority in law enforcement etc.,
aggravate the situation. The income generated by trafficking is
comparable to the money generated through trafficking in arms
and drugs. Trafficking in human beings take place for the purpose
of exploitation which in general could be categorized as (a) Sex-
based and (b) Non-sex-based. The former category includes
trafficking for prostitution, Commercial sexual abuse, paedophilia,
pornography, cyber sex, and different types of disguised sexual
exploitation that take place in some of the massage parlours,
beauty parlours, bars, and other manifestations like call girl
racket, friendship clubs, etc. Non sex based trafficking could be
for different types of servitude, like domestic labour, industrial
labour, adoption, organ transplant, camel racing, marriage related
rackets etc. But the growing trafficking in women is principally for
the purpose of prostitution. Prostitution is an international
problem. However, we are aware of the fact that it is legalized in
many countries around the globe. Unfortunately, society remains
tolerant of this abominable crime against women. There are
assorted ways of getting women into prostitution that are common
to many countries; then there are particular unique methods
varies to a country. Probably, the three most common methods
are false employment promises, false marriages and kidnapping.
But what makes women and girls vulnerable are economic
distress, desertion by their spouses, sexually exploitative social
customs and family traditions. In a recent survey in India,
prostituted women cited the following reasons for their remaining
in the trade, reasons that have been echoed in all the concerned
countries. In descending order of significance, they are: poverty
and unemployment; lack of proper reintegration services, lack of
options; stigma and adverse social attitudes; family expectations
and pressure; resignation and acclimatization to the lifestyle. The
two principal Indian laws that addresses the trafficking and
prostitution in particular are the Suppression of Immoral Traffic in
Women and Girls Act, 1956 (SITA) and the Immoral Traffic
(Prevention) Act, 1986 (ITPA), colloquially called PITA, and
amendment to SITA. Neither law prohibits prostitution per se, but
both forbids commercialized vice and soliciting.
18. India is said to have adopted a tolerant approach to prostitution
whereby an individual is free to carry on prostitution provided it is
not an organized and a commercialized vice. However, it commits
itself to opposing trafficking as enshrined in Article 23 of the
Constitution which prohibits trafficking in human beings. India is
also a signatory to international conventions such as the
Convention on Rights of the Child (1989), Convention on
Elimination of all forms of Discrimination Against Women (1979),
UN Protocol to Prevent, Suppress and Punish Trafficking in
Persons, especially Women and Children (2000) and the latest
South Asian Association for Regional Cooperation (SAARC)
Convention on Preventing and Combating Trafficking in Women
and Children for Prostitution (2002). A trafficked victim is
therefore, a victim of multiplicity of crimes, and extreme form of
abuse and violation of human rights. The constitution of India,
under Article 23 specifically prohibits trafficking in human beings.
At present, the legal regime to trafficking of women and children
for commercial sexual exploitation includes the following:
A) Indian Penal Code, 1960;
B) ITPA, 1956;
C) J.J. Act, 2000;
D) Special laws of various states;
E) Rulings of Supreme Court and High Court.
19. There may be various problems while dealing with the issue of
"trafficking". These petitioners seek to highlight limited facets of
children being compelled to perform in circus and illegal
trafficking in children and failure on the part of the law
enforcement agencies as well as the society to protect the
fundamental rights of the children. The Government had itself
admitted the seriousness of the problem. The report prepared by
Mr. Gopal Subramanium, learned Solicitor General of India and
submitted in Bachpan Bachao petition, it is sated that the
trafficking in human beings is not a new phenomenon. Women,
children and men have been captured, bought and sold in market
places for decades. Human trafficking is one of the most lucrative
criminal activities. Estimates of the United Nations state that 1 to
4 million people are trafficked worldwide each year. Trafficking in
women and children is an operation which is worth more than $10
billion annually. The NHRC Committee on Missing Children has
the following statistics to offer:
(a) 12.6 million (Governmental sources) a 100 million
(unofficial sources) stated to be child labour;
(b) 44,000 children are reported missing annually, of which
11,000 get traced;
(c) About 200 girls and women enter prostitution daily, of
which 20% are below 15 years of age.
International conventions exist to punish and suppress trafficking
especially against women and children [Ref: UN Protocol to
Prevent, Suppress and Punish Trafficking in Persons also referred
as the Palermo Protocol on Trafficking.] Trafficking is now defined
as an organized crime against humanity. The convention being an
international convention is limited to cross border trafficking but
does not address trafficking within the country. The definition of
trafficking is significant:
"... The recruitment, transportation, transfer, harboring or
receipt of persons by means of threat or use of force or other
forms of coercion, of abduction, of fraud, of deception, of the
abuse of power or of a position of vulnerability or of the
giving or receiving of payments or benefits to achieve the
consent of a person having control over another person, for
the purpose of exploitation..."
It is further submitted by the learned Solicitor General that
children under 18 years of age cannot give a valid consent. It is
further submitted that any recruitment, transportation, transfer,
harbouring or receipt of children for the purpose of exploitation is
a form of trafficking regardless of the means used. Three
significant elements constitute trafficking:
(a) The action involving recruitment and transportation;
(b) The means employed such as force, coercion, fraud or
deception including abuse of power and bribes; and
(c) The preliminary purpose being of exploitation
including prostitution, etc.
Internationally, there is a working definition of child trafficking.
The working definition is clear because it incorporates the above
three elements. In June 2001, India has adopted the PALERMO
Protocol to evolve its working definition of child trafficking.
The forms and purposes of child trafficking may be:-
(a) Bonded labour;
(b) Domestic work;
(c) Agricultural labour;
(d) Employment in construction activity;
(e) Carpet industry;
(f) Garment industry;
(g) Fish/shrimp export;
(h) Other sites of work in the formal and informal
economy.
Trafficking can also be for illegal activities such as:-
(a) Begging;
(b) Organ trade;
(c) Drug peddling and smuggling.
Trafficking can be for sexual exploitation, i.e.
(a) Forced prostitution;
(b) Socially and religiously sanctified forms of prostitution;
(c) Sex tourism;
(d) Pornography.
Child trafficking can be to aid entertainment in sports:-
(a) Circus/dance troupes;
(b) Camel jockeying.
Some problem of "trafficking" is highlighted only to show the
plight of children and women, who are taken as domestic help by
dubious placement agencies and forced them into flesh trade.
20. Coming back to the medium of placement agencies, poverty and
lack of opportunity are major foundation of trafficking. Child
trafficking typically begins with a private arrangement between a
trafficker and a family member, driven by the family economic
plight and the trafficker‟s desire for profit and cheap labour.
Someone comes along and says he or she has professions or jobs
for the children and the parents believe it. Parents think that in
letting children go they are doing something good for them; but
someone takes them as and makes them domestic workers, and
someone else takes all the money instead of giving them a salary.
Some crimes that are commonly concurrent with child trafficking,
or which child trafficking may initially appear to be are:
A) Domestic violence;
B) Child abuse or neglect;
C) Child sexual abuse;
D) Child pornography;
E) Child labour violations.
21. In this order, however, our focus has to be on the issue as to how
to have proper control of administration over the placement
agencies so that the exploitation of children is obliterated/
minimized to the possible extent, as that is the issue raised in
these petitioners are preferred.
Re: Regulating the Placement Agencies:
22. The main concern of all the counsel in these writ petitions was that
there was no comprehensive legislation regulating the placement
agencies to take care of the menace. On the other hand, there
were multiple statutes and authorities under those statutes and
the challenge was as to how to achieve the coordination to
remove/disconnect them. It would be of use to mention that this
has been the focus of the various proceedings in these writ
petitions and directions were given from time to time. Though, it
is not necessary to take note of all those orders, some of the
important orders and directions passed in all these proceedings
from time to time need a look, as that would pave the way for final
direction, which we propose to issue in this order. In the order
dated 04.10.2004, this Court had highlighted two issues, which
arise in these writ petitions, viz., tracing and production of children
on the one hand and functioning of different placement agencies
working in NCT of Delhi on the other hand. However, directions
were given to the Government of NCT, Delhi by that order, to
provide framework within which the placement agencies could be
regulated and monitored. Orders dated 04.10.2004 is the
springboard and therefore, we reproduce the same:
"Two distinct issues arise for consideration in this writ
petition. One of these relates to the tracing and production
of the missing minor girl named Jharna Pandit. Reports
submitted by the investigating agency from time to time
show that steps to trace out the missing girl have been
taken but without much success. Ms. Mukta Gupta counsel
for the respondent submits that efforts to trace the missing
minor will continue and that as and when she is recovered,
she will be produced in this Court for appropriate orders.
We need only say that the investigating agency shall take
effective steps in the matter and report the progress to this
Court from time to time.
The second question that arises for consideration, relates to
the functioning of different placement agencies working in
the NCT of Delhi. It is pointed out by Ms. Aparna Bhat that
there are as many as 123 such agencies functioning in
Delhi. These agencies apart from other placement work
carried on by them engage themselves in placement of
children in various establishments including as domestic
help. There is, according to Ms. Bhat, no statutory control
over the functioning of these agencies. The result is that
children who are either picked up from the streets or
brought from various other States to Delhi are first placed
as domestic help and later shifted to other more hazardous
work including some who are pushed into prostitution. The
absence of any regulatory control over the functioning of
these agencies which are run on commercial lines for profit,
according to the learned counsel, defeats the very spirit of
the Juvenile Justice (Care and Protection of Children) Act
2000. She submits that while Section 31 of the said Act
vests the Juvenile child Welfare Committees with extensive
powers, the absence of appropriate rules and regulations
for the exercise of that power has virtually rendered the
said provision nugatory. She states the Child Welfare
Committees functioning in Delhi received a number of
complaints regarding abuse of the children working as
domestic helps in households. Verification of these
complaints have, according to her, proved that the children
working as domestic helps in households. Verification of
these complaints have, according to her, proved that the
children have been subjected to various kinds of indignities
and harassment including sexual abuse. The record of the
committees, if summoned for perusal would, according to
the learned counsel, enable this Court to issue directions
for effectuating the provisions of the Act.
Ms. Mukta Gupta, learned counsel for the respondent, on
the other hand, submits that the Government of Delhi
would have no objection to the issue raised before this
Court being examined and appropriate guidelines being
evolved regulating the exercise of powers by the Child
Welfare Committees under the Act. She submits that the
Child Welfare Committees can be asked to submit a report
regarding the nature of the complaints received by them
alleging abuse of children in domestic and other
establishments and the remedial steps which the
committees have taken in this regard. She further states
that the State Government can examine the matter more
closely in order to provide an appropriate statutory
framework for the exercise of the powers by the
Committees by framing of rules under Section 68 of the Act.
In the circumstances, therefore, we direct that the Child
Welfare Committees in Delhi shall, before the next date of
hearing, submit to this Court a detailed report regarding the
complaints received by them about child abuse, in case
where children are laced with households to work as
domestic servants/help, the nature of the allegation as also
the action which the committees have taken on the same.
The Secretary, Social Welfare Department, Government of
Delhi shall also remain present and indicate whether any
rules have been framed or can be framed in terms of
Section 68 read with 31 of the Act aforementioned to
regulate the exercise of the powers by committees and in
particular to regulate the functioning of the placement
agencies dealing with domestic child labour. The
chairpersons of the two committees shall also be requested
to remain present in the Court on that day along with the
relevant record.
Post on 25th October, 2004. Order Dasti."
23. Pursuant to the aforesaid direction, the State Government filed the
affidavit contending that it was not possible to frame guidelines
for monitoring the placement agencies. Instead, it was suggested
that steps would be taken for making registration under the Delhi
Shops and Establishment Act mandatory, whereby the placement
agencies could also be regulated. The necessary amendment in
the aforesaid Act has since been made. No doubt, that may be a
big step for regulating the placement agencies, the contour of the
problem could not be checked merely with these amendments.
The counsel for the petitioners impressed upon the Court that the
Court should also pass certain guidelines as well. Before it could
be done, counsel for the petitioners were asked to prepare a
comprehensive note indicating the existing legislation or rules and
in the absence of any legislation, to suggest the lines on which a
fresh legislation can be enacted for this purpose. Order in this
behalf was passed on 08.12.2006, which reads as under:
"After hearing Learned Counsel for the parties, it appears
that the Writ Petition has been filed only for registering,
regulating, monitoring and supervising the working of
Placement Agencies that provide employment to women
and children as domestic help.
According to Learned counsel for the Petitioner some steps
need to be taken to ensure that some responsibility is
placed upon the Placement Agencies and they should not
be allowed to carry on their activities unchecked because
several instances of abuse of women and children, who
have been employed as domestic servants, have come to
the notice to the Petitioner and others.
Learned counsel for the Petitioner says that she will prepare
a comprehensive not which indicates the existing
legislation or Rules under which there is no existing
legislation then the lines on which a fresh legislation can be
enacted for this purpose.
Learned Counsel says that she will prepare the
comprehensive note and give to the Learned Counsel for
the State within three weeks. Learned counsel for the State
will then give her reaction to the note.
It is made clear that the present Writ Petition pertains only
to the registration, regulation, monitoring and supervision
of Placement Agencies. List the matter on 23rd January,
2007."
24. In response, Ms. Arpita Bhat, learned counsel appearing for the
petitioner in WP(Crl.) No.619 of 2002 brought to the notice of this
Court the legal position contained in different statutes in the
following manner:
"REGISTRATION:
As far as registration is concerned, the proposal of the
Government to register them under the Delhi Shops and
Establishments Act and make the registration mandatory is
acceptable. However, following the registration process, a
mechanism to regulate the manner in which the agencies
function has to be created. The Petitioner makes the
following proposal.
Domestic workers who are being placed by the agencies
can be classified as children and adults. Children will be
between the age group of 14 and 18 years and the adults
persons above 18 above.
CHILDREN:
There are various dealing with the rights and welfare of
children including children who are working. Three
legislations which can be mentioned in this context are:
i. The Child Labour (prohibition and regulation) Act,
1986;
ii. The Bonded Labour System (Abolition) Act, 1976;
iii. The Juvenile Justice (care and protection of children)
Act, 2000;
CHILD LABOUR (PROHIBITION AND REGULATION)
ACT, 1986.
It has been seen that domestic labour is not given the
status of labour by any legislation. The Child Labour
(Prohibition and Regulation) Act, 1986, sought to address
the problem of child labour in the Country. The Act has
serious flaws. Nevertheless it does seek to regulate and
prohibit child labour under certain circumstances. The act
applies to children upto the age of 14 years. The act
thereafter classifies work into two broad categories,
hazardous and non-hazardous sectors. It is submitted that
while all the hazardous industries as classified by the Act
does fall within the hazardous industry, there are a large
number of sectors which are left out. In fact, the ideal
approach, if at all the classification was necessary, would
have been to classify on the basis of processes rather than
the end product. From October 10, 2006, domestic work
has also been classified as falling under hazardous work. In
any event, even though, children below the age of 14 are
prohibited from being employed, there is very little that the
Act does to enable implementation of this principle. Some
State Governments, understanding that domestic work was
in fact making the child more vulnerable, took some
initiatives and had passed some local notifications and
guidelines which had been in force before the notification of
the Central Government banning child labour from
domestic work came into force. These are:
Tamil Nadu
Amendment to Schedule under Tamil Nadu Manual workers
(regulation and Employment and Conditions of Work Act)
Under this particular Amendment of January 28, 2000
Employment in Domestic Works was added to the said
Schedule of the Act.
Karnataka
Effective from 1st April, 2004.
Amendment to the Minimum wages Act for the state of
Karnataka, Stipulations have been laid out for the
remuneration due to a domestic help based on the nature
of the work as well as the number of hours put in.
Washing Utensils - 45 minutes - `150
Washing Utensils, clothes house keeping, taking care of
children-8 Hours, `1600
There is also a notification issued by the Government of
Karnataka banning employment of child domestics by
Government employees.
Even though the law has come into force, there has not
been any scheme or policy or guidelines which would
indicate the manner in which children already in
employment would be rescued and rehabilitated. Since
"domestic work" has been now classified as hazardous
industry by the Act, the regulation mechanisms within the
Act would come into play and the inspectors appointed
under the Act are under a mandate to enforce the same.
The modalities of enforcement would be as per the rules
prescribed under the Act and the compensation payable
would also be as per the provisions of the Act. The
inspectors appointed under the Act is made payable to the
children.
JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN)
ACT, 2000
Children are governed by the Juvenile Justice (care and
protection of children) Act, 2000. The Juvenile Justice Act,
which is supposed to provide for the care, protection,
treatment, development and rehabilitation of neglected or
delinquent juveniles has certain mandates. The long title of
the Act reads as under:
"To provide for the care, protection, treatment,
development and rehabilitation of neglected or
delinquent juveniles and for the adjudication of certain
matters relating to, and disposition of , delinquent
juveniles the Juvenile Justice Act, 1986 (53 of 1986)
was enacted by Parliament. Several provisions of the
Constitution including clause (3) of Article (15), clauses
(e) and (f) of Article 39, Articles 45 and 47 also impose
on the State a primary responsibility of ensureing that
all the needs of children are met and that their basic
human rights are fully protected. On 20th November,
1989 General Assembly of the United Nations adopted
the Convention on the Rights of the Child wherein a
set of standards to be adhered to by all State parties in
securing the best interests of the child has been
prescribed. The Convention emphasizes social re-
integration of child victims, to the extent possible,
without restoring to judicial proceedings. The
Government of India, having ratified the Convention,
has found it expedient to re-enact the existing law
relating to juveniles bearing in mind the standards
prescribed in the Convention on the Rights of the
Child, the United Nations Standard Minimum Rules for
the Administration of Juvenile Justice, 1985 (The
Beijing Rules), the United Nations Rules for the
Protection of Juveniles Deprived of their Liberty (1990),
and all other relevant international instruments. To
achieve this objective the Juvenile Justice (Care and
Protection of Children) Bill was introduced in the
Parliament.
PREAMBLE
"An Act to consolidate and amend the law relating to
juveniles in conflict with law and children in need of care
and protection, by providing for proper care, protection
and treatment by catering to their development needs,
any by adopting a child-friendly approach in the
adjudication and disposition of matters in the best interest
of children and for their ultimate rehabilitation through
various institutions established under this enactment."
Section 2(d) of the Act defines a child in need of care and
protection. According to this definition:
"2. a)...
.........
d) child in need of care and protection means a child-
(i) who is found without any home or settled place or
abode and without any ostensible means of subsistence,
(ii) who resides with a person (whether a guardian of the
child or not) and such person-
(a) has threatened to kill or injure the child and
there is a reasonable likelihood of the threat being
carried out, or
(b) has killed, abused or neglected some other child
or children and there is a reasonable likelihood of
the child in question being killed, abused or
neglected by that person
(iii) who is mentally or physically challenged or ill children
or children suffering from terminal diseases or incurable
diseases having no one to support or look after,
(iv) who has a parent or guardian and such parent or
guardian is unfit or incapacitated to exercise control over
the child.
(v) who does not have parent and no one is willing to take
care of or whose parent have abandoned him or who is
missing and run away child and whose parent cannot be
found after reasonable injury,
(vi) who is being or is likely to be grossly abused, tortured
or exploited for the purpose of sexual abuse or illegal act,
(vii) who is found vulnerable and is likely to be inducted
into drug abuse or trafficking,
(viii) who is being or is likely to be abused for
unconscionable gains,
(ix) who is victim of any armed conflict, civil commotion or
natural calamity;"
25. By an amendment in 2006, working children are also included
under the definition of children who are in need of care and
protection. Children who are placed as domestic servants clearly
fall under the definition of the child in need of care and protection.
To address the need of children who are in need of care and
protection, the Act has created a quasi judicial institution called
the Child Welfare Committee.
Section 29 of the Act creates the child welfare committee. As per
Section 31 of the Act, the Committee shall have the final authority
to dispose the cases for the care, protection, treatment,
development and rehabilitation of the children as well as to
provide for their basic needs and protection of human rights.
The CWC therefore has the authority to look into cases of children
who are vulnerable not just to provide them redressal in cases of
abuse but to also ensure that they are protected, cared and
rehabilitated if required. The CWCs have under them various fit
institutions which are set up by the Non-Governmental
organizations as well as institutions set up by the Government to
ensure that children are provided safe shelter with food and other
basic amenities.
Since children who work are included under the definition of a
"child in need of care and protection", the authorities under the
Act are under a mandate to ensure that these children are
protected and rehabilitated. The CWCs also have been taking
action against individual employers who have been withholding
wages, making children work in exploitative situation etc.
ADULTS:
With respect to adult women who are employed in various
household, the regulating mechanism prescribed under the Inter
State Migrant Workmen (Regulation of Employment and
Conditions of Service) Act, 1979 can be adapted. The Act is
notified and implemented in the State of Delhi.
This Act is an act to regulate the employment of inter-state
migrant workers. Under this Act, there is compulsory licensing of
contractors. It applies to every contractor who employs or who
employed five or more inter-state migrant workers on any day in
the preceding twelve months. Contractor is defined under Section
2(b) of the Act.
Section 2(b) reads as under:
"(b) "contractor", in relation to an establishment,
means a person who undertakes (whether as an
independent contractor, agent, employee or
otherwise) to produce a given result for the
establishment, other than a mere supply of goods or
articles of manufacture to such establishment, by the
employment of workmen or to supply workmen to the
establishment, and includes a sub-contractor,
Khatadar, sardar, agent or any other person, by
whatever name called, who recruits or employs
workmen;"
26. While this Act has been made applicable primarily to workers in
the formal sector, the definition of the contractor squarely covers
the manner in which placement agencies function and in the
absence of a direct legislation to deal with placement agencies for
the domestic help, the mechanisms within the act can be used.
These mechanisms include licensing, grant, revocation,
suspension and amendment of licenses, specifies duties of the
contractor, recommends filing of reports which includes list of
persons employed through the contractor with details of their
wages, levies responsibility on the contractor to ensure that timely
payments are made. A combined reading of the aforesaid
legislations will empower the Government to:
(a) Register the placement agencies both under the Shops
and Establishments Act as and when registration
becomes mandatory and under the Inter State Migrant
Workmen (Regulation of Employment and Conditions
of Service) Act, 1979 with immediate effect;
(b) Direct the licensing authorities under the Inter State
Migrant Workmen (Regulation of Employment and
Conditions of Service) Act, 1979 to grant licenses to
the placement agencies as "contractor" for a specified
period of time and make them furnish records as per
the requirements under the Act;
(c) Direct the inspectors appointed under the Child Labour
(Prohibition and regulation) Act, 1986 to ensure that
children below 14 are not employed as domestic help
and regulate the conditions of employment of children
in the age group of 14-18;
(d) Direct the Licensing authority under the Inter State
Migrant Workmen (Regulation of Employment and
Conditions of Service) Act, 1979 to supply a copy of
their records to the Child Welfare Committees who in
turn will ensure that children who are placed by these
contractors are cared for properly;
(e) Ensure that the Child Welfare Committees are enabled
by framing model rules with respect to working
children and their rehabilitation needs;
(f) Direct that children below 14 who are rescued are
either repatriated, re-integrated or rehabilitated by the
intervention of the Child Welfare Committee;
(g) In cases of abuse which are covered by the Penal
Code, these agencies either collectively or individually
help prosecute the perpetrator.
27. The above legislations can be sued to register the agencies and
monitor them to ensure that domestic workers are provided with
protection as per guidelines, which have been placed on record by
the Petitioner following discussions with the Government.
28. On the basis of the aforesaid legislative provisions, detailed
suggestions were given by Ms. Arpita Bhat to tackle with the issue
under the existing Labour Laws enumerated above. We will advert
to these suggestions as well giving our directions.
29. We may point out that Mr. Colin Gonsalves, learned Senior counsel
who appeared in WP (Crl.) No. 879 of 2007, also highlighted the
issue and gave some further and additional suggestions, which are
contained in the written submissions filed by the petitioner in this
writ petition.
30. Before we advert to these suggestions and direction, which are
required to be issued on that basis, it would be necessary to
comment that the State Government as well as other
Governmental authorities have participated in these proceedings
while playing the role of facilitator and has not acted in an
adversarial manner. This positive attitude of the respondent needs
to be commended. In fact, the counsel for the respondents as well
as respondent authorities in great measure, joined the other
counsel as well as the Court in finding the solution to the problems.
31. We may also record that Mr. Gopal Subramanium, Solicitor General
of India, who appeared in some stages of these proceedings had
even prepared a comprehensive report on "Indian Child : India's
Eternal Hope and Future" in which not only the extent and
ramification of the problem, some of the measures which are
required to be taken to tackle the problem were also suggested.
After highlighting the problem of trafficking of children and women
and the magnitude thereof, the learned Solicitor General has
suggested that every State Government must have a set of
guidelines of NGO‟s which want to assist in inquiries/fact-finding
and rescue operations. These suggestions given in the said Report
are as under:
"12. Every state government must have a set of
guidelines for NGO‟s which want to assist in inquiries/fact
finding and rescue operations. It is submitted that the
guidelines published in Bernard Boetoen‟s "An NGO's
PRACTICAL GUIDE IN THE FIGHT AGAINST CHILD
TRAFFICKING" are significant and should be adopted as
valuable guidelines.
a) Evaluation of existing or potential risks for the
child involved, the NGO undertaking
enquiry/investigation/fact-finding/rescue and, for
eventual partners (persons, association etc) is
important. Wrong information may be sent out to
divert attention from a real case of trafficking.
There is also a risk for those engaged in
investigations and rescue operations of being
trapped into false accusation;
b) Never simulate being the trafficker alone, in order
to establish proof (it can happen that the
representative of an NGO judges that she/he can
establish proof by playing the role of a client
interested in purchasing children. This can easily
turn against her/him and she/he may be obliged
to prove at a later stage that she/he was in fact
playing a role);
c) Operate in a group of at least two or more
persons if there is a plan to follow the traffickers
or trace a deal as part of the preliminary enquiry
if possible, identify people or groups who can be
potential partners in fact-
finding/investigation/rescuing the child or, in
facilitating and participating in legal action for
protecting the child and prosecuting the offender;
d) Where accessibility to the child, her/his
family/relatives/friends, people in neighborhood is
possible, use non-threatening, non-intrusive
questions with great care and sensitivity to seek
any information;
e) Evaluate the risk of further victimization of the
child and evolve ways and means to become a
companion and confidante for the victimized
child;
f) Maintain the confidentiality of the child, avoid
taking pictures, videos, tape recording etc and
under no circumstances should this be breached
as it could endanger the child‟s life;
g) Be prepared to help the child in terms of
immediate removal from victimization and
ensuring trauma counseling;
h) Reliability of the information received and the fact
of trafficking must be confirmed by reaffirming
the address/name/identity of person(s) involved
(the child, the alleged offender(s), child‟s family
surrounding in which the child is confined or kept
etc.). It does not imply imputing any conclusion
or judgment on the case;
i) Be as precise as possible in relation to the
elements that constitute a case of trafficking: on
the description of the location, the dates, the
time, the numbers, the nationality and the
description of the persons present, their
presumed age, their clothes, the vehicles used for
transporting the victims, the length of the trips
(night, day etc...); the brutality suffered, the food
and drinks given, the financial transactions etc.;
j) Put everything into writing, and indicate what is
verified and what is assumed, what is direct
testimony and what is indirect testimony through
a third party, what are rumors etc. This will help
analyze the information gathered, assessee
areas/issues on which more information is
required and devise ways of doing so. Written
observation can go a long way in conducting
further inquiry and investigation. Even while
assisting in the prosecution of offenders as a
witness, the written observations prove a great
help. Never forget that at a later date the
investigator will be called in the judicial process
as a witness, and the information will be
submitted for cross-examination by the counsel
for the defence;
k) Keep the witnesses and victims anonymous in the
first written report. Only deliver the names when
submitting to the police or the CWC or at the
judicial stage;
l) Be ready to pursue the case
(complaint/FIR/evidence/cross-
examination/psycho-legal support to the
victim/rehabilitation and reintegration of the
victim)."
32. Thereafter the learned Solicitor General has suggested certain
guidelines which police must follow in this behalf. Following
suggestions are mooted in this Court, which are as under:
"13. The police must follow certain guidelines as well. It
is submitted that the following guidelines should be
mandated:-
i. Care must be taken to ensure the
confidentiality of the child and due protection
must be given to her/him as a witness;
ii. The detailed interview of the victim should be
done preferably by crisis intervention
centres/members of the Child Welfare
Committee under the Juvenile Justice Act.
There should be adequate breaks and intervals
during the interview with a child victim:
iii. If the police employ a child friendly approach
to the entire investigation, the possibility of
getting all relevant information gets higher.
This can be done by having a supportive
environment for the child at the police station
wherein attention is paid to his needs. This can
be done at the police station itself or at any
other place co-managed by police and any
NGO/CBO. Support persons for the child
should be contacted and in their absence, any
civil society group working with/for children or
members of CWC (whoever the child feels
comfortable with) could be asked to the
present;
iv. Due care must be maintained to attend to
issues like interpreters, translators, record
maintaining personnel, audio-video recording
possibilities etc.;
v. As far as possible, the same investigation
officer must follow up the case from
investigation stage to the trial stage;
vi. There should be provision of food and water as
well as toilet facilities for the child in the police
station and the hospital;
vii. No child should be kept in a Police Station;
viii. Where a special juvenile police unit or a police
officer has been designated to deal with
crimes against children and crimes committed
by children, cases relating to children must be
reported by such officer to the Juvenile Justice
Board or the child welfare committee or the
child line or an NGO as the case may be. "
33. Certain measures for proper implementation of Juvenile Justice
(Care and Protection of Children) Act 2000 are suggested in the
same report. Measures are also suggested for tackling the
problem of child labour, child marriage, trafficking of children for
begging, trafficking of illegal inter-country adoptions, exploitation
of children for pornography, removal of human organs without
authority that violates the provision of Transplantation of Human
Organs Act, 1994. In the factories including hazardous industries,
however, having in mind the scope of these writ petitions, we are
not recording the same to express with the hope that these
suggestions of the learned Solicitor General, who is the Law Officer
of the Union of India, would also be given serious consideration by
the competent authorities and effective steps would be taken to
implement those suggestions.
34. Notwithstanding various laws and benevolent/welfare schemes,
the reasons because of which the problem persists in is alarming
magnitude as highlighted by the Ministry of Women and Child
Development, are reproduced in the aforesaid report:
"Lack of prevention
Policies, programmes and structures to prevent children
from falling into difficult circumstances are most lacking.
This pertains both to policies to strengthen and empower
poor and vulnerable families to cope with economic and
social hardship and challenges and thus be able to take
care of their children, as well as to efforts to raise
awareness of all India‟s people on child rights and child
protection situation.
Poor planning and coordination
i) Poor implementation of existing laws and
legislations;
ii) Lack of linkages with essential lateral services for
children, for example, education, health, police,
judiciary, services for the disables, etc;
iii) No mapping has been done for the children in need
of care and protection or of the services available for
them at the district city state levels;
iv) Lack of coordination and convergence of
programmes/services;
v) Weak supervision, monitoring and evaluation of the
juvenile justice system.
Services are negligible relative to the needs
i) Most of the children in need of care and protection,
as well as their families do not get any support and
services;
ii) Resources for child protection are meager and their
utilization is extremely uneven across India;
iii) Inadequate outreach and funding of existing
programmes results in marginal coverage even of
children in extremely difficult situations;
iv) Ongoing large scale rural urban migration creates an
enormous variety and number of problems related to
social dislocation, severe lack of shelter and rampant
poverty, most of which are not addressed at all;
v) Lack of services addressing the issues like child
marriage, female foeticide, discrimination against the
girl child, etc;
vi) Little interventions for children affected by HIV/AIDS,
drug abuse, militancy, disasters (both manmade and
natural), abused and exploited children and children
of vulnerable groups like commercial sex workers,
prisoners, migrant population and other socially
vulnerable groups, etc;
vii) Little interventions for children with special needs,
particularly mentally challenged children."
Poor infrastructure
i) Structures mandated by legislation are often
inadequate:
ii) Lack of institutional infrastructure to deal with child
protection;
iii) Inadequate number of CWCs and JJBs;
iv) Existing CWCs and JJBs not provided with requisite
facilities for their efficient function, resulting in
delayed enquiries and disposal of cases.
Inadequate human resources
i) Inappropriate appointments to key child protection
services leading to inefficient and non-responsive
services;
ii) Lack of training and capacity building of personnel
working in the child protection system;
iii) Inadequate sensitization and capacity building of
allied systems including police, judiciary, health care
professions, etc;
iv) Lack of proactive involvement of the voluntary
sectors in child protection service delivery by the
State UT Administrations;
v) Large number of vacancies in existing child
protection institutions.
Serious service gaps
i. Improper use of institution in contravention to
government guidelines;
ii. Lack of support services to families at risk making
children vulnerable;
iii. Overbearing focus on institutional (residential care)
with non-institutional (i.e. non-residential) services
neglected;
iv. Inter-state and Intra-state transfer of children
especially for their restoration to families not
provided for in the existing schemes.
v. Lack of standards of care (accommodation,
sanitation, leisure, food etc.) in all institutions due to
lower funding;
vi. Lack of supervision and commitment to implement
and monitor standards of care in institutions;
vii. Most 24-hourshelters do not provide all the basic
facilities required, especially availability of shelter,
food and mainstream education;
viii. Not all programmes address issues of drug abuse,
HIV/AIDS and sexual abuse related vulnerabilities of
children;
ix. None of the existing schemes address the needs of
child beggars or children used for begging;
x. Minimal use of non-institutional care options like
adoption, foster care and sponsorship to children
without home and family ties.
xi. No mechanism for child protection at community
level or involvement of communities and local bodies
in programmes and services;
xii. Serious services and infrastructure gaps leading to
few adoptions;
xiii. Cumbersome and time consuming adoption services;
xiv. Lack of rehabilitation services for older children not
adopted through regular adoption processes;
xv. Aftercare and rehabilitation programme for children
above 18 years are not available in all states, and
where they do exist they are run as any other
institution under the JJ Act, 2000.
35. The learned Solicitor General has conceded that the above needs
to be addressed by the interventional order of this Court in
exercise of its extra-ordinary jurisdiction under the Constitution of
India. In fact, directions of the following nature are solicited:
"70. The above needs to be addressed by interventional
orders of this Court in the exercise of its extraordinary
jurisdiction under the Constitution. Points of
implementation must be identified. Each state government
must identify an officer who is responsible for
implementation of schemes in relation to children. There
must be a parallel linkage between a point of contact of the
Collectorate/Executive Administration with a point in Legal
Aid i.e. the Executive Chairman of the State Legal Services
Authority and a point in the NGO sector/civil society.
Similarly, points must be identified in each zila parishad
and panchayat simiti and gram panchayats. In fact, the
presiding officers of the gram nyayalayas may also be
encouraged to identify children who are vulnerable and who
need protection. The Integrated Child Protection Scheme is
presently in place. It seeks to institutionalize essential
services and strengthen structures; it seeks to enhance
capacities at all levels; it seeks to create database and
knowledge base for child protection services; it needs to
strengthen child protection at family and community level.
The guiding principles are neatly formulated in this scheme.
These must be implemented. The adoption programme will
be governed by the following guiding principles:-
i) Best interest of the child is paramount;
ii) Institutionalisation (e.g. placement into
residential care) of the child should be for the
shortest possible period of time;
iii) All attempts should be made to find a suitable
Indian family within the district, state or
country;
iv) The child shall be offered for inter-country
adoption only after all possibilities for national
adoptin, or other forms of family based
placement alternatives such as placement
with relatives (kinship care), sponsorship and
foster care arrangements have been
exhausted;
v) All institutions should disclose details about
children in their care and make sure that those
free for adoption are filed and recorded with
the State Adoption Resource Agency (SARA)
and CARA, with all supporting documentation
of authorization of such adoption from CWC;
vi) Inter-state coordination to match the list of
Prospective Adoptive Parents (PAPs) with that
of available children should be done by SARAs;
vii) No birth mother/parent(s) should be
forced/coerced to give up their child for
monetary or any other consideration;
viii) Adoption process from the beginning to end
shall be completed in the shortest possible
time;
ix) Monitoring, regulating and promoting the
concept and practice of ethical adoptions in
the country should be ensured;
x) Agencies involved in the adoption process
should perform their duties in a transparent
manner, following rules of good governance
and adhering to the professional and ethical
code of conduct. Those agencies shall be
reporting to and will be subject to rigorous
auditing and supervision by responsible state
bodies.
72. The ICPS programmes are now brought under one
umbrella and are as follows:
a) Care, support and rehabilitation services through
child-line;
b) Open shelters for children in need in urban/semi
urban areas;
c) Family based non-institutional care through
sponsorship, foster care, adoption and aftercare.
xxx xxx xxx
75. In view of the directions suggested, the Child Welfare
Committee must directly come under the supervision of the
District Judge/Judge of the High Court, it is submitted that
the above implementation must also be overseen by a
Court-monitored mechanism.
76. There must be an annual report by CARA. The said
report must be scrutinized by a secretary incharge of family
and social welfare. On 9th September, 2009, an office
memorandum was issued by the Ministry of Home Affairs.
77. It is submitted that the said scheme requires to be
implemented by all the States. In view of the above
circular dated 9th September, 2009, it is submitted that a
court direction is necessary to implement the said circular.
This Court may direct that the said officer memorandum
may be implemented by all the State Governments and
monthly reports be sent to the central government.
xxx xxx xxx
83. It is submitted that implementation of schemes for
children must not be vitiated by humoresque choices but
based on the ethos and spirit of republic and
constitutionalism. It is submitted that the ichonography of
child rights will require not only active cooperation but a
recognition of reality that children are undoubtedly the
harbingers of future. The safely to a society lies in the
manner of discovering the ignipotent character of youth
and children and particularly their capacity to be genuine,
authentic, individuals of self-worth and self-esteem. A
society which ignores children or is unconcerned about
child rights will always bear the ignominy of being a partial
and selective society carrying the impost of elitism. In India
where rural poor exist and children work in dhabas, it is
necessary that a mere imprecation towards charity is
inadequate, a trusted infrustrable right and ethos must
emanate from constitutional provisions. It is submitted that
constitutional provisions are not only intended to be
invocative, they must be evocative in action. It is
respectfully submitted that rescue operations for children
must not be mere ligatures but must actually be
meaningful reintegrative steps into mainstream of society.
This requires conscious participation of the Government,
the civil society and those who are going to envision the
reforms for educating the poor and the weaker sections of
society. It is submitted that any intervention would prevent
malversation in the implementation of schemes launched
bonafidee. Ultimately, it is in the delivery of the schemes
and the manner in which delivery takes place fully that
governance measures its success. It is further submitted
that a continuing monitoring of these directions is essential
so that the initiative taken by the Central Government must
not be reduced into marcescent hopes. Under these
circumstances, it is submitted that suitable directions may
be issued by this Court in the larger interest of justice.
84. It is submitted that a direction be issued that all the
Central Government/State Governments/Union Territories
will cooperate to bring into effect the direction suggested
above."
36. Since the respondent/Government itself had volunteered and
exhorted this Court to issue directions of the nature aforesaid by
conceding that this Court has power to issue such directions in
exercise of its extraordinary power under Article 226 of the
Constitution, we hereby direct the Government of NCT of Delhi as
well as Government of India to take steps in the manner
suggested above treating the same as directions of this Court
given in this order.
37. In addition, based on the suggestions given by the learned counsel
for the petitioners in all these writ petition, we hereby give the
following directions summarized as under:
(i) There is no comprehensive legislation to take care of
the problem and multiple statutes with multiple
authorities - for lack of coordination and disconnect
among them - are not able to tackle the issue
effectively. Therefore, there is a need to study this
aspect, viz., feasibility of having a legislation to
regulate employment of problem of children and adult
women, who are working as domestic helps.
Emphasis should be laid on the regulation of
placement of agencies who provide such helps. We
are making these observations also for the reason that
the existing laws do not provide and effective speedy
remedial which could ensure that women and children
are able to;
(a) Seek recovery and wages,
(b) Ensure freedom of movement,
(c) Access shelter option in case of abuse
before being able to go home.
Feasibility of having control of SDMs of the areas on
these placement agencies should also be worked out.
(ii) Till that is achieved, which is allowing term measure,
immediate concerned respondent authority to ensure
as to how various enforcement agencies of different
statutes are able to work in a coordinated and
cooperative manner. Necessary guidelines should be
issued or rules framed in this behalf. If possible, single
window enforcement agency be created so that the
the NGO on behalf of such victims are able to
approach the said agencies instead of knocking the
doors of different authorities.
(iii) For more effective implementation of the Juvenile
Justice (Care and Protection of Children) Act 2000 and
Delhi Commission for Women Act, following directions
are issued:
(a) Labour Department will register all
placement agencies. The registration
process will be within a finite period of
time. Failure to register within that
prescribed time should invite penal action
which can be prescribed by this Court.
(b) The registration process should not only be
for agencies located in Delhi but also for
all the agencies, who are placing women
and children in homes located in Delhi.
This suggestion is made in view of the
apprehension expressed during
discussions with the Labour Department
that as soon stringent laws are brought
into effect in Delhi, the agencies may shift
out to the NCR region.
(c) The registration information should
require:
1) Details of the agencies;
2) Number of persons, who are
employed through the agencies,
their names, ages and their
addresses;
3) Details of salaries fixed for each
person;
4) Addresses of the employers;
5) Period of employment;
6) Nature of work;
7) Details of the Commissions
received from the employers.
(d) The information should be available for
access to the Child Welfare Committee as
well as the Delhi Commission for Women.
During the discussions, the Labour
Department had indicated that the
information would be put up on the
website. Till such time, the information
should not be put up on the website, the
records may be made available by the
labour Department to the Commission and
the Committee.
38. Various suggestions given by the petitioner in W.P. (Crl.) No.619 of
2002 and to take such remedial steps, which are necessary for
implementation thereof, should be taken in consideration as
stated by the petitioner & as stated in paragraph 38 onwards
herein be treated as the direction of this court. We also direct the
respondent authorities to consider the following suggestions at the
earliest :
Duties of the Commission and the Committee:
a) The Committee and the Commission will have a duty to
go through the records provided by the Labour
Department.
b) The Committee and the Commission will verify the
information and the cases where information is found to
be inadequate, seek further information from the
placement agencies after duly summoning them. The
Committee shall be authorized to sue the services of
„Childline‟, a service set up by the Ministry of Women and
Child Development, Union of India and managed by NGOs
to verify the information in appropriate cases. The
Commission shall identify agencies who would assist
them in verifying information with respect to adult
women.
c) The Committee and the Commission shall entertain
complaints made by the domestic worker herself/himself
of through her/his guardian, NGOs managing „childline‟
services, the employer or the police in appropriate cases.
d) The Committee or the Commission shall decide the
complaints made within a period of 30 days.
Adjudication of the Complaints:
The Committee and the Commission may hear the following types
of cases:
a) Withholding of agreed wages;
b) Harassment including harassment by employer at the
hands of the placement agencies;
c) Harassment and/abuse by placement agency
proprietor/staff at their premises or at work place;
d) Non-compliance of the agreed terms;
e) Abusive working conditions which is beyond the physical
capacity of the child in cases where persons between the
ages 14 and 18 are employed.
f) Long hours of work;
g) Lack of basic facilities including medical care and food.
Powers of the Committee/Commission:
(a) A committee and the commission will have powers to
summon the placement agencies or the employer as
the case may be on a complaint made by the domestic
worker or her guardian or any person employing her;
(b) Direct payment of wages as per agreed terms and in
appropriate cases impose fines;
(c) Direct payment of compensation in cases where
severe injuries are caused to the domestic worker
during the course of the work;
(d) Direct medical assistance;
(e) Direct the placement agency to comply with the
agreement with the employer or return the
commission where the terms are not complies with;
(f) Impose fines on the placement agencies where it is
found that terms of the agreement are not followed;
(g) Direct legal aid to the child/woman where a criminal
offence has happened;
(h) Direct employers to inform the local police or the
Committee/Commission in cases where the domestic
worker is missing within 24 hours;
(i) In cases where a domestic worker has been placed in
a home against her wishes, enable her to leave her
employment and direct the agency to return the
commission paid by the employer back to the
employer.
39. The Petitioner in W.P. (Crl.) No.879 of 2007 has referred to Police
Circular issued by DCP, Headquarters, New Delhi. This Circular
requires the Delhi Police to:
a) regulate the functioning of placement agencies;
b) to ensure proper screening of domestic workers being
recruited by placement agencies by maintaining the register of
all such agencies;
c) Ensure that the agencies enroll applicants on the basis of
formal applications containing full details including the
photographs and contact addresses of the applicants, the
details of previous employers, etc.
d) Verification of domestic workers is to be done by the Police.
The DCP has filed the response wherein it is stated that the matter
was examined in detail and the guidelines stated in the Circular
cannot be implemented as Delhi Police is already too
overburdened with the law and order, security, inquiries and
investigations, etc. It is also mentioned that to keep a check on
the maintenance of registers, etc. of the placement agencies
would not be feasible in the current scenario of heightened
security concern. It is stated that the Circular is merely an
executive instruction and non-compliance thereof cannot entail
any penal consequence on the placement agencies. We are of the
opinion that once such a circular is issued, it does not behove
Delhi Police now to wriggle out of that on the pretext that this was
for internal instructions and thereby refusing to adhere to the
same. We, therefore, direct that the administration at the highest
level in Delhi Police shall reconsider the feasibility of
implementation of the instructions contained in the said.
40. Another direction, which is sought by this petitioner pertains the
dues of 83 domestic workers, which are yet to be recovered from
the placement agencies or the employers. It is submitted that
since the children were exploited without Police or Labour
Department acting to protect them, the Government of NCT, Delhi
be directed to pay the entire dues at the earliest and recover the
same from the placement agencies or employers. However, such
directions cannot be issued without dealing with this issue at
length that too on the basis of proper pleadings. Therefore, we
give liberty to the petitioner to file appropriate writ in this behalf.
41. The petitioner has also pointed out that 12 children are still
missing and have not been recovered. We direct the Police to
register the F.I.R. in all these cases of remaining persons and take
proper investigation into the matter and also take steps to locate
those children at the earliest. During the investigation, help of the
petitioner can also be sought. It would be more appropriate if the
interrogation of concerned persons in the placement agencies is
done in the presence of the petitioner.
42. These writ petitions are disposed of in the aforesaid terms.
However, if any clarification for further consequential directions is
needed, the petitioners are given liberty to approach this Court by
means of Miscellaneous applications in these writ petitions.
(A.K. SIKRI)
JUDGE
(AJIT BHARIHOKE)
JUDGE
DECEMBER 24, 2010
pmc
