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2010 (12) TMI 1371
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....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, ....
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....t 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 ....
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....oceedings, 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 a....
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..... 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 p....
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....afficked 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 agen....
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....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 C Ds, 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 petit....
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....k 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 agent....
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....s 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, lo....
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....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; ....
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.... 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 s....
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.... 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 t....
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....y 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....
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....ithin 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 c....
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....hes house keeping, taking care of children-8 Hours Rs. 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....
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....stence, (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....
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....or", 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....
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.... 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 ass....
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....fficking 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....
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.... 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 su....
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.... 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 CW Cs and JJ Bs; iv) Existing CW Cs and JJ Bs 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 contr....
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....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 India....
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.... 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. 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 et....
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....nt 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 SD Ms 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 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....
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....nt, Union of India and managed by NG Os 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, NG Os 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....