Interface Meeting on Rehabilitation of Rescued Child Labour as per Action Plan for abolition of Child Labour in Delhi

September 4, 2013

Venue: Indian Institute of Public Administration, Conference Hall, 1st Floor, Indraprastha Estate, Ring Road, New Delhi-110002

Delhi Commission for Protection of Child Rights 5th Floor, ISBT Building, Kashmiri Gate, New Delhi Ph:011-23862685, 23862691 CONTENTS

S.NO. DESCRIPTION PAGES

1 Foreword...... 1

2 Report of the Interface with Chairpersons of State Commissions to ...... 3-17 facilitate rehabilitation of child labour/bonded child labour rescued under the Action Plan for Abolition of Child Labour in Delhi

3 Programme Schedule ...... 18-19

4 Background Note: Rehabilitation of Child Labour/Bonded Child Labour ...... 20-24 rescued in Delhi

5 Presentation from Labour Department, Delhi Police and Department of ...... 25-33 Women and Child Development

6 Hon'ble High Court of Delhi judgment in W.P. (Crl.) No.82/2009, ...... 34-64 W.P. (Crl.) No.619/2002 and W.P. (Crl.) No.879/2007 dated 24 December 2010

7 Sample copy of Child Welfare Committee order for wage recovery ...... 65-66

8 Action Plan for Abolition of Child Labour in Delhi-2010 including ...... 67-102 Hon'ble High Court of Delhi judgment in W.P. (C) 9767/2009 and W.P. (Crl.) 2069/2005 dated 15 July 2009

9 Protocol on Prevention, Rescue, Repatriation and Rehabilitation of ...... 103-120 Trafficked and Migrant Child Labour 2008 (Ministry of Labour and Employment, Govt. of India)

10 Standard Operating Procedure (SOP) on Investigation of Crimes of ...... 121-166 Trafficking for Forced Labour 2008 (UNODC)

11 Standard Operating Procedure to handle Trafficking of Children ...... 167-175 for Child Labour - measures to be taken for rescue of trafficked child labourers' and action against the traffickers/employers 2013 (Ministry of Home Affairs, Govt. of India) FOREWORD elhi is fortunate to have a detailed Action Plan for abolition of child labour for the city. It is an Action Plan put together under the aegis of DNCPCR and was endorsed for implementation by the Hon'ble High Court of Delhi. The Action Plan spells out the role of stakeholders and lays down comprehensive procedures to facilitate abolition of child labour. While several systems are in place for the implementation of the Action Plan, it cannot be denied that the processes involved suffer from several bottlenecks at different levels. It was in this context that the Delhi Commission for Protection of Child Rights thought it fit to organize an Interface Meeting of State Commissions for Protection of Child Rights in order to facilitate sharing of the status of implementation in terms of achievements as well as problems faced by different stakeholders. The intention was to afford all concerned an opportunity to collectively revisit the approach to abolition of child labour, in order to arrive at a more effective implementation module.

The Interface Meeting was attended by the Chairperson NCPCR, Ms. Kushal Singh as well as Members NCPCR Sh. Dubey and Sh. Tikoo. The deliberations benefited from the views of the officers of the departments of labour, women and child development, Divisional Commissioner's office, Delhi Police, Child Welfare Committee in addition to the Chairpersons/ Members of a number of State Commissions for Protection of Child Rights (Bihar, Madhya Pradesh, Uttarakhand, Rajasthan, Jharkhand, Orissa and Chhattisgarh)

The report is an attempt to put in one place not only the deliberations of the Interface Meeting and its recommendations but also document the number of useful papers, presentations, court orders, Standard Operating Procedure/ Protocols and other relevant notes on the issue of prevention, rescue, repatriation, rehabilitation of trafficked and migrant child labour. The Delhi Commission for Protection of Child Rights acknowledges the important contribution of Member, DCPCR Sh. M.M. Vidyarthi in organizing the Interface Meeting and also coordinating the completion of this detailed report. I am sure the Interface Meeting and its deliberations/ recommendations have clearly brought out the important role which both the NCPCR and the State Commissions for Protection of Child Rights have in reviewing policies and procedures relating to abolition of child labour and monitoring the status of implementation of the same. DCPCR would consider its efforts rewarding if the Interface results in strengthening of the mechanism of rehabilitation of child labour in source states and in Delhi and also in facilitating development of improved interstate coordination in this regard.

Arun Mathur Chairperson, DCPCR February, 2014 REPORT OF THE INTERFACE WITH CHAIRPERSONS OF STATE COMMISSIONS TO FACILITATE REHABILITATION OF CHILD LABOUR/BONDED CHILD LABOUR RESCUED UNDER THE ACTION PLAN FOR ABOLITION OF CHILD LABOUR IN DELHI

I. Introduction Delhi has been witness to influx of a large numbers of migrants from different states especially those facing abject poverty. The phenomenon of poverty in these states driven the migration as well as trafficking of children for labour. While some children run away from home to explore life in Delhi, most others are lured with false promises by agents, placement agencies and middlemen and end up in getting into exploitative work situation in Delhi. As per 2001 Census, the number of child labour in Delhi was 41,000. Numerous cases of exploitation, physical and sexual abuse as well as death of children at the work place were reported in the last few years necessitating action by government as well as civil society organizations. While efforts were made both by government as well as non government organizations, there were largely a response on case to case basis and highlighted the absence of a comprehensive redressal strategy to deal with the problem. The honorable High Court of Delhi took cognizance of the issue in WP (Crl.) 2069/2005, WP(C) 4125/2007 and WP(C) 4161/2008 and directed the National Commission for Protection of Child Rights to submit a comprehensive plan of action for the abolition of child labour in Delhi. The plan submitted by NCPCR was formalized for implementation by the High court vide its judgment dated 15 July 2009. The said Action Plan spells out the role of stakeholders and lays down comprehensive procedures to facilitate abolition of child labour. The implementation of the said Action Plan is monitored by the High Court of Delhi. The DCPCR tracks the status on a monthly basis and has also instituted a study on the impact of the implementation of the Action Plan for abolition of child labour in Delhi. The Action Plan referred to rescue of working children above 14 years of age under the legislative framework of the Juvenile Justice (Care and Protection of Children) Act, 2000 along with rescue of children below 14 years from hazardous and non hazardous employment. With the implementation of the Action Plan in Delhi, while processes have evolved at district level, the bottlenecks have become obvious over a period of time. I.I Features of the Delhi Action Plan for Abolition of Child Labour, 2009 The Action Plan for abolition of child labour in Delhi recognizes that working children in Delhi include: (i) Out-of-school children living with their parents and (ii) Children who have come from other States without their families The said plan lays down two strategies for abolition of child labour in Delhi. The first strategy is an 'area-based approach' which addresses all children in the age group 6-14 years living with their parents in an identified area, whether they are in school or out-of-school. All out-of-school children would be regarded as engaged in some form of work and being deprived of their right to education. Children in schools are to be monitored so that they do not drop out and join the labour pool. The second strategy was to be adopted mainly in the context of migrant child labor who are away from their families and have little or no linkage with the community. It involves a process of identification,

3 rescue, restoration and rehabilitation of child labour. While the two strategies are different, they are not mutually exclusive. The strategy for Unaccompanied Migrant Child Labour in Delhi is based on “Protocol on Prevention, Rescue, Repatriation and Rehabilitation of Trafficked and Migrant Child Labour” issued by Ministry of Labour and Employment, Government of India, 2008. . This strategy suggested the constitution of a Steering Committee on Child Labour at the State level and District Level Task Force on Child Labour at District Level. The Action Plan stipulates that the strategy of rescue of children should be preceded by a campaign through the media by the department of Labour and DWCD. It also refers to proactive surveillance by the labour department. The Action Plan also specifies the composition of the rescue team and role of each stakeholder. The rescue team consists of the Sub divisional magistrate, labour department, police and civil society organizations. The Action Plan also refers to the inclusion of the District Social Welfare Officer, Nodal officer of SJPU, deputy education officer ( zonal) of MCD and the senior most officer of the factory licensing department of MCD and CWC in the rescue team. The rescue team is supposed to have a pre rescue meeting to discuss and decide on the logistics and role distribution. The Delhi Child Labour Action Plan describes procedures for major and minor rescue operations, the major being those with more than 10 children. The involvement of the district child labour task force is mandated in all major rescues while minor rescues can be coordinated by the labour department with the police on the day when the case is reported. The Delhi Action plan mandates the labour department to recover Rs 20000 from the employer soon after the rescue and clarifies that conviction is not a prerequisite to recovery. It also mentions the role of the stakeholders in restoration of children to their home states. II. Rationale of the Interface The action plan for abolition of child labour in Delhi lays down a comprehensive approach that was developed with collective thinking of various stakeholders and was debated again in the Delhi High court leading to greater clarity of procedure and norms. The Interface organized by the Delhi Commission for Protection of Child Rights was an effort to facilitate sharing of the status of implementation in terms of achievements as well as problems faced by different stakeholders. It was envisaged that this would provide an opportunity to collectively rethink the scope of adaptation or change for more effective implementation in future. The magnitude of child labour is much higher in many other states of the country and data has clearly revealed that not much has been done to address the same. The interface also aimed to present the Delhi model is an example for other states so that other states could adopt whatever was good in terms of implementation and improve upon areas where there was still some work to be done. Children rescued in Delhi belong to other states and are restored to their home state by the Child Welfare Committees of Delhi. The children restored to the family in the source states are often trafficked from the source state and there is likelihood that these children may face similar vulnerabilities even after restoration. Therefore the responsibility of the source state to develop mechanisms to reintegrate these children and rehabilitate them educationally as well as economically is important. The source states receive the rehabilitation amount for restored children in their respective district child labour welfare fund from the Labour department, Government of NCT of Delhi and the District Magistrates also receive the Copy of the release certificate for each child

4 bonded labour from the Sub divisional Magistrates, Department of Revenue, Government of NCT of Delhi. While this is done there is need for greater interstate coordination to ensure that each child has a rehabilitation plan both in terms of education as well as economic rehabilitation. The rescue and restoration efforts would lose meaning if the child is not rehabilitated and integrated in the society. The said interface was important as it witnessed useful discussion on measures for such interstate coordination. The National and the State Commissions for Protection of Child Rights have an important role both in reviewing policies and procedures and monitoring the status of implementation of the same. This interface was also a platform for sharing initiatives taken by the State Commissions in monitoring the concerns of child labour. III. Objectives of the Interface · To strengthen the mechanism of rehabilitation of Child Labour in source state and Delhi. · To suggest corrective mechanism to be adopted in Plan of Action for Abolition of Child Labor. IV. Proceedings of the Interface SESSION 1: Welcome and Introduction of Delegates The interface started with a welcome address from Mr. Arun Mathur, Chairperson, Delhi Commission for Protection of Child Rights. He said that the Action Plan for Abolition of Child Labour in Delhi was finalized by a Committee with representatives from department of Labour, Women and Child Development, Education, Health, Municipal Corporation of Delhi and Police in a process facilitated by the National Commission for Protection of Child Rights. The said Action Plan was endorsed by the Delhi High Court and has been implemented in Delhi since July 2009. He emphasized that in Delhi more than 95% of child labour is either trafficked or comprises unaccompanied migrants from other states where there is widespread poverty and therefore rehabilitation of these rescued and restored children requires strong interstate coordination mechanisms. He stated that the Delhi Commission took the initiative to organize this consultation in order to share the lessons learnt from the implementation of the said action plan with other states and evolve mechanisms for interstate coordination. He extended his warm welcome to Ms Kushal Singh, Chairperson NCPCR, Mr. Yogesh Dube and Mr. Vinod Kumar Tikoo, Members NCPCR and other distinguished guests. In her address Ms Kushal Singh c o n g r a t u l a t e d t h e D e l h i Commission for taking the initiative of getting together the stakeholders involved in rescue and rehabilitation of child labour. S h e s a i d t h a t t h e S t a t e commissions cannot be islands in isolation and therefore this initiative for sharing of best practices is commendable. She said this Action Plan was an outcome of collective thinking and

5 it should evolve further based on experiences to adapt to the present situation. She stressed that rehabilitation is important as there is no point in rescuing children and then letting them be vulnerable to be sent back to work. She said that the National Commission for Protection of Child Rights would be happy to take forward the deliberations of the said interface. The Member, NCPCR, Mr. Yogesh Dube stated that the issue of child labour has been keeping NCPCR worried. The procedures of addressing child labour through rescue are evident but unfortunately most states have not taken adequate action in this regard. He shared that one and a half year back rescued children were not being produced before the Child welfare committee. In Uttar Pradesh 6 districts have been identified and core committee has been constituted to facilitate action. The Public hearing in Jharkhand reflected that the situation is very pathetic and government response has been very poor. He said that in most states Anti Human Trafficking Units and Special Juvenile Units have been notified but they remain on paper. He also shared that NCPCR has had to intervene in many major rescues and post rescue procedures specially to ensure issue of release certificate. He suggested that short term and long term strategies would have to be devised along with ensuring a child tracking system and a central task force. SESSION 2: Sharing of Delhi experiences in Implementation of Action Plan for Abolition of Child Labour in Delhi One of the objectives of the said consultation was to share the experiences of stakeholders in implementation of the action plan for abolition of child labour. The session was chaired by Mr. Arun Mathur, Chairperson, DCPCR. Mr. Mathur said that the said action plan has definitely brought progressive change in the context of child labour and specific experiences of stakeholders would help us rethink various perspectives of the action plan. Mr. Rajendra Dhar, Additional Labour Commissioner, Government of NCT of Delhi stated that before the said action plan was formed, the inspections and rescues were done by the labour department alone and there was no emphasis on rehabilitation. The constitution of task force has made rescue and rehabilitation of child labour a multi stakeholder process enabling greater coordination and information sharing. . Mr. Rajendra Dhar pointed out The Task Forces have facilitated 1450 rescue operations since the judgment of the Hon'ble Delhi High Court in 2009. He further shared that over 3734 children have been rescued from different districts of Delhi between July 2009 and June 2013. This includes 2357 below 14 years and 1377 above 14 years. He told that in the period between July 2009 and June 2013, a sum of Rs.35, 13,715 was recovered as arrears of minimum wages from the defaulting employers. The state also recovered Rs 20,000 per child as rehabilitation amount as per Hon'ble Supreme Court judgment in M.C. Mehta vs state of Tamil Nadu, the total recovery being Rs.1,17,99,360. A sum of Rs. 1, 88, 25,000/- had been released to other states. In all these cases, premises of 232 employers were sealed to facilitate recovery and 1450 FIRs were filed.

6 Mr. Dhar also stated that the famous M. C. Mehta Judgment of 1996 provided that Rs 20,000 collected as penalty from the employer and Rs 5000 from the state government should be deposited in the child labour welfare society fund of the state/ District and that the interest of the said money should be used to rehabilitate children. The Delhi High Court in 2009 directed that the said penalty could be collected from the employer soon after the rescue and that conviction was not a prerequisite. The Delhi High court on a query of the Labour department also clarified that such penalty can be recovered as arrears of land revenue from the employer. He also highlighted that in Delhi the Sub Divisional Magistrates initiated sealing of premises of the employer soon after the rescue and this was challenged by one of the employers but the High Court appreciated the initiative of the district task force though this is not referred to as a procedure under the legislation related to child labour. In context of rescued children who belong to Delhi, the labour department is funding the operation of two Transition Education Centers which facilitate interim education of children and ensure that they are mainstreamed. The Police perspective on procedures and prosecution was put forward by Mr. S.B.K. Singh, the Joint Commissioner of Police, Special Police Unit for Women and Children, Delhi. He shared that the Delhi Police is proactively filing FIRs in all cases of child labour and bonded labour. In the year 2012, 78 cases were reported whereas in 2013 (up to July) 44 cases have been reported and 152 and 83 employers were arrested in 2012 and 2013 respectively under the child labour (prohibition and Regulation) Act, 1986. He also said that it is high time that we ensure measures of rehabilitation for rescued children and suggested involvement of corporates through corporate social responsibility funds and initiating a National Rehabilitation Fund as viable options. Taking the session forward Mr. Arun Mathur indicated that the civil society has played a critical role in implementation of the action plan and therefore understanding their perspective as well as problems faced by them is of utmost importance. Mr. Rakesh Senger representing Bachpan Bachao Andolan shared that though the Action Plan for Abolition of Child Labour has evolved as a model,

7 there is a great deal of work that remains to be done by the task forces. Citing an example he said that through more than 5000 children work in the area of Nabi Karim, only 300 could be rescued in last three years. He also opined that of the two strategies suggested in the action plan the proactive area based strategy got diluted over a period of time. According to statistics available with Bachpan Bachao Andolan, 2284 rescued children are from Bihar and of these only 13 children have got Rs. 20,000 as rehabilitation and only 8 children have received Rs 20,000 under the centrally sponsored scheme for rehabilitation of bonded labour. He also raised the point that as stipulated by the high court 500 children are not being rescued every month to which Mr. Dhar clarified that the Department of labour has in its affidavit requested the hon'ble high court of Delhi to give targets in terms of number of rescues rather than number of children. The CWC, Chairperson Mr. Ajay from Delhi shared his experiences of cases of rescued child labour. He said that once a child is restored receiving response from the source state remains a challenge for Delhi. He mentioned the initiatives taken by the CWCs in Delhi. Mr. Amod Kanth, the former Chairperson of Delhi Commission for Protection of Child Rights stated that the Child Labour (abolition and regulation) Act, 1986 is under amendment and the said bill prohibits children up to 18 years of age from work in hazardous employment and therefore it would require rethink in the approach for implementation of the same. The action plan recommends that CWCs should coordinate with resident commissioners of respective source states for restoration and follow up for rescued child labour. Infact taking cognizance of the issue of child labour from Bihar, the state of Bihar has posted an officer from the Department of Labour in the office of the Resident commissioner of Bihar. Mr. Ahmed mentioned that the office of the resident commissioner has a crucial role to play in the process of restoration and rehabilitation but this is possible when they are duly informed and kept in the loop in pre-restoration procedures. He said that while they receive a list of children restored from the CWC and copies of the release certificate from the department of revenue, the said communications do not have covering letters specifying the expectation. He said that improved flow of information and coordination are prerequisites to rehabilitation measures for children. The Department of Women and Child development, Government of NCT of Delhi is another important stakeholder in facilitating the implementation of the said action Plan. Mr. Khakha, Assistant Director from the said department presented out that in the year 2012 – 2013 a total of 1637 cases of child labour have been handled by the CWCs in Delhi. Out of these rescued children 427 children belonged to Bihar while 331 belonged to West Bengal and 223 to Uttar Pradesh. He also said that the CWCs in Delhi have ensured payment of Rs 97, 44,935 as arrears of wages from different employers. Mr. Khakha updated the participants on the progress of implementation of Integrated

8 Child Protection Scheme which included initiation of the s p o n s o r s h i p p r o g r a m m e , constitution of District Child protection Units in all districts of Delhi and ensuring aadhar card to children living in institutions. This was followed by an open discussion session. Mr. Raajmangal Prasad of Pratidhi appreciated the transfer of money done by the labour department but highlighted that the resident commissioners have not played their expected role in restoration and rehabilitation. He said that in a study done by his organization it was realized that very junior officers of the labour department are posted in districts of Sitamarhi, Darbhanga and Madhubani and this is a major reason for the absence of efforts at convergence of different departments for the rehabilitation of children. Mr. Sanjay Gupta from Chetana said that action in case of child labour is happening only on complaints of the civil society and there are little efforts being done by the department in proactively identifying child labour. SESSION 3: Interaction on Role of NCPCR and SCPCR on Issues of Rehabilitation of Child Labour The last session focused on the sharing of the significant role that the State Commissions for Protection of Child Rights could have in addressing the issue of child labour and specifically the initiatives that they can take in rehabilitation of children rescued from Child labour in Delhi and restored to source states. The Chairperson of Madhya Pradesh Commission Ms.Usha Chaturvedi stressed that different legislations in India use age between 14 – 18 years to define a child which is a major anomaly and therefore there should be uniformity of age in defining a child across all laws. She questioned why children between the ages of 14 – 18 years should be allowed to work under the legislation addressing child labour. She also opined that with time our laws should become more progressive in terms of greater amount of compensation to the children. She also suggested involvement of ICDS, specially anganwadi centers, in ensuring that children received education and are not pushed into labour. Ms Chaturvedi said that at present the National Child Labour project is sanctioned for 17 districts of Madhya Pradesh and the Commission has requested the centre for its extension in more districts. Mr. Yogesh Dube, Member, NCPCR said that NCPL has not been very successful in many states and therefore increase of its coverage may not be very essential. The Chairperson of the Uttarakhand Commission for Protection of Child Rights Mr. Setia indicated that as per data provided to the commission 3329 children have been rescued from child labour

9 between 2006 – 2011 but prosecution has been initiated only against 16 employers and only 26 employers have paid the penalty of Rs 20000. From among these children, 213 were linked to NCLP while 390 were sent to school by NGOs. He opined that state of rehabilitation of rescued children has been so poor because the children were never produced before the CWC. Mr. Setia mentioned that it is surprising that the state had 3 children's home and 11 observation homes. The observation homes had a capacity of 300 children and occupancy of 55 only. Infact 4 observation homes had no children at all. The Commission has directed the state to convert some of the observation homes into children homes. Mr. Setia suggested that the National commission for Protection of Child Rights should issue guidelines to states especially with respect to children's homes under the Integrated Child Protection Scheme. He also shared his experiences about intervention of the commission to ensure that the Char Dham Yatra in Uttarakhand had no child labour. In total 62 children were rescued during this Yatra. Mr. Setia also gave a brief about the status of implementation of ICPS as well as the initiative of the commission to provide training to Child Welfare Committees in Uttarakhand. The Chairperson of the Bihar Commission for Protection of Child Rights Ms. Nisha Jha started her address by highlighting the issues of working mothers in rural Bihar because such mothers are bound to leave their children unattended at the workplace since their birth. She shared the initiatives of the commission towards increasing the sensitivity of Panchayat. According to Ms Jha Palna Greh Yojana has not benefitted such women and there is an urgent need to review the gaps in the functioning of Aanganwadis. She also said that the Bihar government has initiated the Parwarish yojna, a foster care scheme for orphan and HIV infected/ affected children. She emphasized the need for selection of sensitive officials for Dhava Dals (Rescue teams) as well as their training as at present they have little awareness on post rescue procedures. The Rajasthan Commission for protection of Child Rights was represented by it member Mr. Sudeep Goyal. He said that Rajasthan has been very proactive in interventions on the issue of child labour. The commission has facilitated the development of standard operating procedures with detailed roles of each stakeholder for rescue and rehabilitation of child labour. The state has also been a

10 pioneer in creating a Directorate of child rights wherein there is convergence of schemes for children. He also shared that District and village level child protection committees have been constituted in the state and the commission has also coordinated with the Railways and NGOs for intervention with children on the R a i l w a y C h i l d r e n . T h e rehabilitation of rescued child labour has been a challenge in Rajasthan as around 1.5 crores remain unspent due to lack of clarity of procedures. Also the high court of Rajasthan has disallowed the recovery of penalty from the employer till there is conviction. The Member, Jharkhand Commission for Protection of Child rights Mr. Sanjay Mishra said that every year 12% girls go missing from Jharkhand due to trafficking/ migration to metropolitan towns. The stories of most rescued girls reflect financial, physical and sexual exploitation. He shared that if the Jharkhand commission is informed about any such rescue, they take complete responsibility of the restoration of these girls from Delhi. All girls below 14 years are directly given admission to Kasturba Gandhi Balika Vidyalay. Till now 1200 rescued girls have been admitted to such schools. He also mentioned that to address trafficking; NCPCR and the Jharkhand Commission had organized a Public hearing wherein FIRs of all missing girls were filed the same day. The Chairperson, Odisha Commission for Protection of Child Rights described that child labour in Odisha is very invisible especially because 85% children are agricultural labour. According to him the department of labour is in a denial mode and not ready to accept the magnitude of child labour. The initiative of opening seasonal hostels for migrant children is a best practice adopted by Odisha government. The Chairperson of Chattisgarh Commission for Protection of Child Rights said that the problem of child labour exists in the state but the department of labour is not taking cognizance of the magnitude. The Commission is making efforts to address the issue as reported on a case to case basis as well as at policy level.

11 V. Outcome and Recommendations of the Interface The Chairperson of DCPCR Mr. Mathur summed up the proceedings of the interface highlighting the major outcomes for future action. He said that the interface has been a very rich sharing of experiences that has led to mutual learning and that such sharing should become regular practice. The major outcomes of the said interface included a broad consensus on: i) Need for increased coordination among CWCs was emphasized for rehabilitation of rescued children. ii) Necessity for developing comprehensive SOP in view of major differences in practices related to prerescue, rescue and post rescue procedures being followed by the labour, Police, Revenue and the CWC in districts. The SOP will address the following: • Roles of stakeholders in the rescue process • Standards of Logistics to be maintained in rescue and post rescue procedures • Minimization of victimization of rescued child in the post rescue statement recording • Process of serving notice for recovery of wage arrears and rehabilitation amount, sealing of premises, calculation of wage arrears and mode of payment to the child, opening of bank account of the child and standards of disbursal. • Basic minimum requisites to be fulfilled by CWC before restoration. • Documentation to be maintained with each department regarding each child. iii) Streamlining Restoration: involvement of resident commissioners and CWCs of source districts as well as the DCPUs at source district in the process of restoration so that there can be a system of follow up and a mechanism of rehabilitation in the source state. iv) Development of Information system to track progress from time to time a complaint is received till restoration. This is also necessitated because there is little coordination post the rescue. Restoration of the child, sending of the release certificate and transfer of the rehabilitation amount are parallel procedures where coordination should be ensured immediately. v) Strengthening the Implementation of the Bonded labour Act by ensuring that the children receive the benefits of the Centrally Sponsored Scheme for Rehabilitation of Bonded Labour. vi) Requisite support to CWCs through convergence with ICPS ( both structures and schemes). This would specifically mean enhanced role of State Child Protection Society and District Child protection Units in post rescue procedures. vii) Developing Interstate coordination mechanisms for • Collated Information on restoration of rescued children to be relayed to source state through a single point/ person in Delhi so that all expected facilities and benefits could be provided to the child. In the source state also there should be one nodal point for receipt of information and coordination for further rehabilitation • Systems of convergences of services at the source state • Providing feedback to CWCs in Delhi on the state of rehabilitation. viii) Training of stakeholders in Delhi to be formalized

12 ix) Mass Awareness should be taken up as an agenda by the Labour department as well as WCD. x) Interstate coordination for rehabilitation of child labour to be an issue of priority coordination by the SCPCRs and they would work in tandem with their respective state governments to strengthen rehabilitation of restored children. LIST OF PARTICIPANTS 1. Ms. Kushal Singh 7. Mrs. Zeeshana Khan Chairperson Member, Delhi Commission for Protection National Commission for Protection of Child Rights, 5th Floor, ISBT Building, of Child Rights, 5th Floor, Chanderlok Kashmere Gate, Delhi Building, 36, Janpath Marg, New Delhi-110001 8. Dr. Sarita Sarangi Ph: 011-23731583 Member, Delhi Commission for Protection [email protected] of Child Rights, 5th Floor, ISBT Building, Kashmere Gate, Delhi 2. Dr. Yogesh Dubey Member 9. Mrs. Mamta Sahai National Commission for Protection Member, Delhi Commission for Protection of Child Rights, 5th Floor, Chanderlok of Child Rights, 5th Floor, ISBT Building, Building, 36, Janpath Marg, Kashmere Gate, Delhi New Delhi-110001 Ph:011-23478204 10. Smt. Nisha Jha [email protected], Former Chairperson, Bihar State [email protected] Commission for Protection of Child Rights 22/B, Harding Road, Patna-800001, Bihar 3. Sh. Vinod Kumar Tikoo Ph: 09470439481 Member [email protected] National Commission for Protection of Child Rights, 5th Floor, Chanderlok 11. Sh. Pratik Khare Building, 36, Janpath Marg, Secretary, Chattisgarh Commission for New Delhi-110001 Protection of Child Rights, A-34, Shankar [email protected] Nagar, Sector-1, Nagarpalika Nigam, Zone No.3, Shankar Nagar, Raipur, Chattisgarh 4. Sh. Arun Mathur Ph: 09425525127 Chairperson, Delhi Commission for Protection of Child Rights, 5th Floor, 12. Sh. Rajender Meher ISBT Building, Kashmere Gate, Delhi Member, Odisha State Commisson for Protection of Child Rights, Qrs. No. A-1, 5. Sh. M.M. Vidyarthi Unit-V, Bhubaneswar Member, Delhi Commission for Protection Ph: 09437194954 of Child Rights, 5th Floor, ISBT Building, Kashmere Gate, Delhi 13. Sh. Sanjay Mishra Member, Jharkhand State Commission for 6. Sh. Shashank Shekhar Protection of Child rights, Deputy Member, Delhi Commission for Protection Commission Office, 1st Floor, Room No. of Child Rights, 5th Floor, ISBT Building, 103/104, Ranchi-834001, Jharkhand Kashmere Gate, Delhi

13 14. Sh. Mahadev Hansda 21. Ms. Sucharita Sarangi Save the Children, Jharkhand OSD, Office of Resident Commissioner Ph: 09430331262 (Orissa), 4, Bordoloi Marg, Chanakyapuri, New Delhi – 110021 15. Sh. Sudeep Goyal Member 22. Sh. K.S Aggarwal Rajasthan State Commission for Asstt. Labour Commissioner Protection of Child Rights, 2, Jal Path, Ghaziabad, Uttar Pradesh Gandhi Nagar, Jaipur-302015 Ph: 09911142344 Ph: 09414036896 23. Sh. Gurmukh Singh 16. Ms. Usha Chaturvedi Dy. Labour Commissioner (South) Chairperson District Labour Office, Madhya Pradesh State Commission for Room No. 122-123, Protection of Child Rights, 59, Narmada A wing, Ist Floor, Pushpa Bhawan, Bhavan, Jail Road, Arera Hills, Pushp Vihar, New Delhi Bhopal-462002 Ph: 09871290727 Ph: 09425008744 [email protected]

17. Smt. Vijaya Shukla 24. Sh. U.K. Sinha Member Dy. Labour Commissioner(South-West) Madhya Pradesh State Commission for Near DTC colony, Hari Nagar, Protection of Child Rights, Pratap Nagar, New Delhi -110064 59, Narmada Bhavan, Jail Road, Ph: 09871250773 Arera Hills, Bhopal-462002 25. Sh. K.R. Verma Ph: 09424411757 Jt. Labour Commissioner (West) F-Block, Karampura, New Delhi 18. Sh. L.P. Pathak Ph: 09811220255 Dy. Labour Commissioner Indore, Madhya Pradesh 26. Sh. S.C. Yadav Ph: 09407151676 Dy. Labour Commissioner (North-West) Nimri Colony, Ashok Vihar, 19. Sh. Ajay Setia Phase –IV, Delhi-52 Chairperson Ph: 09811165128 Uttarakhand Commission for Protection of Child Rights, Directorate of ICDS 27. Sh. Lallan Singh (DWCD), Suddhowala, Vikash Nagar Road, Dy. Labour Commissioner (North) Near Nanda Chowki, Dehradun, Nimri Colony, Ashok Vihar, Uttrakhand Phase -IV, Delhi-52 Ph:09411112030 Ph: 09818470360

20. Sh. M.E. Ahmed 28. Sh. M.K. Gaur Addl. Labour Commissioner Dy. Labour Commissioner (Central) Govt. of Bihar, Bihar Bhavan, 5 Kautilya Employment Exchange Building Marg, Chanakyapuri, New Delhi Pusa Complex, New Delhi Ph: 07838206235 Ph: 08826154555

14 29. Sh. Om Prakash 37. Smt. Sushma Vij Astt. Labour Commissioner (New Delhi) Chairperson, Child Welfare Committee-IV Social Welfare Building, 1-Canning Lane, NPS School for Deaf & Dumb, K.G. Marg, New Delhi Near Delhi Police Apartment, Ph: 9818988013 Mayur Vihar, Phase-I, Delhi Ph: 9910197929 30. Sh. C.R. Garg Chairman 38. Ms. Nutan Pathak District Task Force on Child Labour/ Member, Child Welfare Committee-IV Deputy Commissioner (West), Old Middle NPS School for Deaf & Dumb, School Complex, Rampura, Delhi-110035 Near Delhi Police Apartment, Ph: 09650469955 Mayur Vihar, Phase-I, Delhi Ph: 9810041819 31. Sh. J.R. Kaim Director of Education, North Delhi 39. Sh. Ajay Kumar Singh Municipal Corporation, 15th Floor, Chairperson, Child Welfare Committee-V Civic Center, Jawaharlal Nehru Marg, Sanskar Ashram, Dilshad Garden, Delhi New Delhi Ph: 9868465366 Ph: 09717750214 40. Smt. Kamla Lekhwani 32. Sh. K. Vijayan Chairperson, Child Welfare Committee-VI Director of Education, East Delhi Asha Kiran Complex, Avantika, Rohini, Municipal Corporation, Plot No.419, Delhi. Udyog Sadan, Patparganj Industrial Area, Ph: 9910023202 Delhi-110092 Ph: 08826690524 41. Smt. Amita Tiwari Chairperson, Child Welfare Committee-VII 33. Sh. Premoday Khakha Nirmal Chhaya Complex, Jail Road, Delhi Asstt. Director Ph: 08447514245 Department of Women and Child 42. Sh. S.B. K. Singh Development, 1, Canning Lane, Jt. Commissioner of Police, Crime K.G. Marg, Ph: 09968319611 Delhi Police Head Quarters, MSO Building, I.P. Estate, Delhi 34. Dr. V.K. Aggarwal Ph: 09818099016 Addl. Director, Directorate of Health F-17, Karkardooma, Delhi-110032 43. Smt. Suman Nalwa Ph: 09811587208 Dy. Commisioner of Police, Special Police 35. Smt. Indira Yadav Unit for Women and Children, Chairperson, Child Welfare Committee-I Nanakpura, Delhi Nirmal Chhaya Complex, Jail Road, Delhi Ph: 08750871343 Ph: 9810223073 [email protected]

36. Ms. Vimala Paul 44. Sh. Rakesh Sengar Chairperson, Child Welfare Committee-III National Secretary, Bachpan Bachao Sewa Kutir Complex, Kingsway Camp, Andolan, L-6, Kalkaji, New Delhi-110019 Delhi Ph: 09212063778 Ph: 9810740401

15 45. Ms. Swati Jha 54. Sh. V.K. Rao Bachpan Bachao Andolan Labour Department L-6, Kalkaji, New Delhi-110019 District North-East Ph: 09868437063 Ph: 09873277679

46. Sh. Amod K Kant 55. Ms. Pushpa Chief Executive, Prayas Labour Department 59, Tughlaqabad,Industrial Area, Govt. of NCT of Delhi Near Batra Hospital, New Delhi-62 Ph: 9911760643 Ph: 011-29955505 56. Insp. Subodh Kumar 47. Ms. Heenu Singh SHO, Delhi Police CHILDLINE India Foundation, Ph: 8750871326 North Regional Resource Centre, F/F 252 K Sant Nagar, East of Kailash 57. Sh. R.C. Besra New Delhi-110065 Secretary to Resident Commissioner Ph: 09811051331 Govt. of Jharkhand, New Delhi Ph: 9868111329 48. Sh. Shaiju Verghese CHILDLINE India Foundation, North 58. S.S. Pathak Regional Resource Centre Dy. Labour Commissioner (Jamshedpur) F/F 252 K Sant Nagar, East of Kailash Ph: 08986630761 New Delhi-110065 Ph: 09873550288 59. Sh. V.S. Arya Jt. Labour Commissioner, 49. Mr. Raaj Mangal Prasad Labour Department, Project Director, Pratidhi Govt. of NCT of Delhi Shakarpur Station Complex, Ph: 9899991556 Room No.38-41, IInd Floor, Ramesh Park, Pusta Road, Delhi-110092. 60. Sh. M.B. Malhotra Ph:9891788455 SDM (Saraswati Vihar), Govt. of NCT of Delhi 50. Sh. Shashi Bhushan Ph: 9718971739 Labour Department Govt. of NCT of Delhi 61. Sh. Varun Pathak Ph: 09871788360 JVI NGO Ph: 9212647471 51. Dr. R.K. Rai Member, Child Welfare Committee 62. Sh. Pradeep Kumar Lajpat Nagar, Ph: 9310682930 SDM (Delhi Cantt.), Govt. of NCT of Delhi Ph: 9350551313 52. Sh. A. Sapra Office of the UEE Mission 63. Sh. Ramakant Rai Ph: 09811256665 Country Convener, National Coalition Education, Shikshak Bhawan, 53. Ms. Rita Singh 41 Institutional Area, D-Block, Office of the UEE Mission Janakpuri, New Delhi Ph: 09899063056 Ph: 9811418201

16 64. Sh. Rajnath 70. Sh. Jayash Singh National Coalition Education Ph: 9999555713 Shikshak Bhawan, 41 Institutional Area, D-Block, Janakpuri, New Delhi 71. Sh. A.K. Saxena Department of Education 65. Sh. S. Bose Ph: 011-23890122 Scribe Ph: 9013585654 72. Sh. S.K. Nigam SDM (Yamuna Vihar) 66. Sh. P.K. Parida Ph: 9891368344 Asst. Professor, IIPA Ph: 9868651675 73. Ananya Pand The Tribune 67. Mohd. A. Abid Ph: 9910276189 Addl. Secretary (Revenue) [email protected] Govt. of NCT of Delhi Ph: 9868277255 74. Sh. V.K. Singh Labour Officer, East District 68. Ms. Rati Singh Labour Department, Labour Officer, North-West District Govt. of NCT of Delhi Labour Department, Govt. of NCT of Delhi Ph: 9958995522 Ph: 9015777067 75. Sh. Sanjay Gupta 69. Sh. Syed Rizwan Ali Chetna NGO Ph: 9450938348 Ph: 9811432012

17 PROGRAMME SCHEDULE

Date : 04 September 2013 Time : 11:00 A.M.-05:00 P.M. Venue : Indian Institute of Public Administration, Conference Hall, 1st Floor, Indraprastha Estate, Ring Road, New Delhi-110002 Time Programme 11:00 A.M. Registration and Tea 11:15 to 11:30 A.M. Welcome and Introduction of Delegates 11:30 A.M. to 12:00 P.M. Welcome address by Mr. Arun Mathur, Chairperson, DCPCR Address by Ms. Kushal Singh, Hon'ble Chairperson, NCPCR Address by Dr. Yogesh Dubey, Member, NCPCR 12:00 P.M. to 01:00 P.M. Sharing of Delhi experiences in Implementation of Action Plan for Abolition of Child Labour in Delhi- Mr. Arun Mathur (In chair) 1. Mr. S.B.K. Singh, Joint Commissioner of Police, Special Police Unit for Women and Children, Delhi 2. Mr. Rajendra Dhar, Additional Labour Commissioner, Government of NCT of Delhi 3. Mr. Sunil Parthwal, Resident Commissioner, Government of Bihar 4. Mr. Rakesh Senger, Bachpan Bachao Andolan 5. Director, Department of Women and Child Development, Govt. of NCT of Delhi 6. Representative of Divisional Commissioner, Delhi 01:00 P.M to 01:30 P.M. Interaction Session 01:30P.M.-02:15 P.M. Lunch 02:15 P.M. -04:30 P.M. Interaction on Role of NCPCR and SCPCR on Issues of Rehabilitation of Child Labour (Ms. Kushal Singh- in chair) 1. Ms Nisha Jha, Chairperson, Bihar State Commission for Protection of Child rights. 2. Ms Usha Chaturvedi, Chairperson, Madhya Pradesh State Commission for Protection of Child Rights 3. Mr. Ajay Setia, Chairperson, Uttarakhand State Commission for Protection of Child Rights 4. Mr Sudeep Goyal, Member, Rajasthan State Commission for Protection of Child Rights

18 5. Mr. Sanjay Mishra, Member, Jharkhand State Commission for Protection of Child Rights 6. Mr Rajender Meher, Member, Orissa State Commission for Protection of Child Rights 7. Mr. Pratik Khare, Secretary, Chhattisgarh State Commission for Protection of Child Rights 04:30 P.M.– 05:00 P.M. Summing Up – Roadmap for future

Convener : Mr. M.M. Vidyarthi, Member, Delhi Commission for Protection of Child Rights Rapporteurs : Dr. Komal Ganotra, Consultant, Delhi Commission for Protection of Child Rights Mr. Usama Aslam, Consultant

19 BACKGROUND NOTE: REHABILITATION OF CHILD LABOUR/ BONDED CHILD LABOUR RESCUED IN DELHI

Introduction As per 2001 Census, the number of child labour in Delhi was around 41000. The honorable High Court of Delhi took cognizance of the issue in WP (Crl.) 2069/2005, WP(C)4125/2007 and WP(C) 4161/2008 and directed the National Commission for Protection of Child Rights to submit a comprehensive plan of action for abolition of child labour in Delhi. The plan submitted by NCPCR was formalized for implementation by the High court vide its judgment dated 15 July 2009. The said Action Plan spells out the role of stakeholders and lays down comprehensive procedures to facilitate abolition of child labour. The implementation of the said Action Plan has been monitored by the High Court from time to time. The DCPCR tracks the status on a monthly basis and has also instituted a study on the impact of the implementation of the Action Plan for abolition of child labour in Delhi. The data provided by Labour Department, Govt. of NCT of Delhi indicates that over 3734 children have been rescued from different districts of Delhi between July 2009 and June 2013. This includes 2357 below 14 years and 1377 above 14 years. The Action Plan referred to rescue of working children above 14 years of age under the legislative framework of the Juvenile Justice (Care and Protection of Children) Act, 2000 along with rescue of children below 14 years from hazardous and non hazardous employment. In the period between July 2009 and June 2013, Rs.35, 13,715 were recovered as arrears of minimum wages from the defaulting employers. The state also recovered Rs 20,000 per child as rehabilitation amount as per Hon'ble Supreme Court judgment in M.C. Mehta vs state of Tamil Nadu, the total recovery being Rs.1,17,99,360. A sum of Rs. 1,88,25,000/- had been released to other states. In all these cases premises of 232 employers were sealed to facilitate recovery and 1450 FIRs were filed. There has been satisfactory progress in the implementation of the Action Plan due to coordinated efforts of all stakeholders in Delhi. While the processes at district level have evolved over a period of time, the bottlenecks have also become obvious. There still are certain gaps both concerning systems of implementation as well as regarding interstate coordination in follow up and rehabilitation of rescued children. Salient features of the Delhi Action Plan for Abolition of Child Labour, 2009 The Action Plan for abolition of child labour in Delhi recognizes that working children in Delhi include: (i) Out-of-school children living with their parents and (ii) Children who have come from other States without their families Hence, the said plan lays down two strategies for abolition of child labour in Delhi. The first strategy is an 'area-based approach' which addresses all children in the age group 6-14 years living with their parents in an identified area, whether they are in school or out-of-school. All out-of-school children would be regarded as engaged in some form of work and being deprived of their right to education. Children in schools are to be monitored so that they do not drop out and join the labour pool. The

20 second strategy was to be adopted mainly in the context of migrant child labor who are away from their families and have little or no linkage with the community. It involves a process of identification, rescue, restoration and rehabilitation of child labour. While the two strategies are different, they are not mutually exclusive. The strategy for Unaccompanied Migrant Child Labour in Delhi is based on “Protocol on Prevention, Rescue, Repatriation and Rehabilitation of Trafficked and Migrant Child Labour” issued by Ministry of Labour and Employment, Government of India, 2008. . This strategy suggested the constitution of a Steering Committee on Child Labour at the State level and District Level Task Force on Child Labour at District Level. Pre rescue, Rescue and Restoration Procedures: Reflections on Present Status The Action Plan stipulated that the strategy of rescue of children should be preceded by a campaign through the media by the department of Labour and DWCD. It also referred to proactive surveillance by the labour department. The District Child Labour Task force plans the area wise rescue based on the complaints received. The Action Plan requires a monthly meeting of the District Child Labour Task force. Inspite of this, there is still pendency of reported cases of child labour. The Action Plan also specifies the composition of the rescue team. It consists of the Sub divisional magistrate, labour department, police and civil society organizations. The Action Plan also refers to the inclusion of the District Social Welfare Officer, Nodal officer of SJPU, deputy education officer ( zonal) of MCD and the senior most officer of the factory licensing department of MCD and CWC in the rescue team. The rescue team has a prerescue meeting to discuss and decide on the logistics and role distribution. The Delhi Child Labour Action Plan also refers to procedures for major and minor rescue operations, the major being those with more than 10 children. The involvement of the district child labour task force is mandated in all major rescues while minor rescues can be coordinated by the labour department with the police on the day when the case is reported. In case of minor rescues the concerned civil society organization and the police produce the children before the CWC whereas in case of major rescues the CWC, labour, police and SDM take the statement of the children at a common place like a community hall, college premises, baarat ghar etc. The arrangement of logistics of rescue including the vehicles, adequate refreshment, food and water etc is the responsibility of the Labour department. Statement before Police, CWC, Labour as well as the SDM is a time consuming process for rescued children. Recording of statements followed by general medical examination of children in case of major rescues may, at times take upto 7 – 8 hours. There is need for more streamlined procedures in this regard. Post rescue Challenges and Gaps After the rescue the children are placed in a shelter/ children's home. Several proceedings are thereafter to be completed by CWC. Filing of FIR usually takes place the same day or on subsequent days. This has become streamlined over a period of time. One of the major challenges in terms of filing legal action is regarding tracking the trafficker or framing charges against him. There are a large number of agents who traffick these children from their native villages but most of them go scot free.

21 In cases where there is no age proof to ascertain the age of the child and it is likely that the child may be above 14 years, the CWC orders ossification test. One of the major delays in restoration of children is due to delay in getting the report of the ossification test. There is need for closer coordination with the health department and hospitals in every district to expedite the said process. Recovery from the Employer and Legal Action Once the child is rescued, legal procedures against the employer are initiated. The labour department serves a notice to the employer for payment of Rs 20,000 per child rescued as well as the wage arrears calculated on the basis of the statement given by the children. If the employers fails to make the payment, the same is communicated to the department of revenue which takes action for sealing of the premises of the employer where the child labour was employed. The SDM ensures recovery of the same and only after receiving an acknowledgement about receipt of wage arrears as well as Rs 20,000 the seal is removed from the premises. The Rs 20,000 recovered as per CLPRA and Supreme Court judgment in M.C. Mehta case, 1996 is credited to the Delhi state child welfare fund and the draft of the wage arrears is made in the name of the child. These procedures need further clarity, standardization and streamlining. A few anomalies are mentioned below: • There are cases where the sealing of premises is being carried out just after the rescue, given the fact that most of these buildings are rented by the employer and in case action is not taken immediately the employers flee from there and vacate the building, making recovery difficult. In such cases where there is no recovery, the child neither get any wage arrears nor the rehabilitation amount. • In the context of recovery of Rs 20,000 from the employer and its disbursement to the child labour welfare fund of the district where the child is rehabilitated, the Action Plan refers to the responsibility of the Labour department as well as of the Deputy Commissioner. In the state of Delhi the child labour welfare and rehabilitation fund is formed at the state level and not at district level (as in other states). Therefore all money recovered from each district is collated at state level with the labour department. The District Child Labour Task force as well as the DC has little jurisdiction in the process of disbursement of this amount. • After receipt of Rs. 20000 in the state child labour welfare cum rehabilitation fund from the employer, the labour department transfers the said money to the district child labour welfare fund of the district where the child is rehabilitated but it is usually after a gap visa-a- vis restoration of the child. Release of children as Bonded Labour In Delhi a large number of children have been declared bonded labour by the SDMs based on the statement of the children. The SDMs also issue a release certificate for each child declared bonded labour so that the child can receive benefits of the centrally sponsored scheme for rehabilitation of bonded labour which includes Rs 20,000 as compensation and benefit of existing government schemes for strengthening of the livelihood of the family. • The release certificates are being issued but are, at times delayed. At times they are issued after the child has been restored. In the absence of a release certificate the child cannot avail the benefits of the scheme

22 • Even where children receive the release certificate there is need for a better coordination mechanism with other states for rehabilitation. • The Department of Revenue, Government of NCT of Delhi is to provide the children the interim benefit of Rs 1000 under the centrally sponsored scheme for rehabilitation of bonded labour. Restoration of Children Delhi has been applauded for the volume of cases being handled by the CWC especially in the context of restoration. In case of child labour it is commonly observed that the employers inform the parents of the rescued children who present themselves with identity proofs to take custody of their children. More than 80% children are being restored to their parents. • The Action Plan mandates the verification of antecedents of parents before restoration of the children. The Juvenile Justice Act also refers to procedures of home verification. The CWCs in Delhi are dealing with a large number of cases and verification in each case is not feasible unless there are streamlined procedures between states specially with dedicated workforce to do so. Therefore in more than 50% of the cases there is no formal verification or home study conducted before restoration. Children are handed over to parents after due counseling of parents and crosschecking their identity documents. • The Standard operating procedure for interstate restoration of children issued by the Ministry of Women and Child Development, Government of India as well as the Action Plan state that children below 14 years should be handed over through the CWC in source district. In Delhi most restorations take place directly to parents, reducing the opportunity for follow up mechanism for children. • The Action Plan mentions that the rehabilitation plan for the child must be prepared by the Child Welfare Committee in the home district. Since most children are being restored without information to the CWC in the home district they are only restored but rarely rehabilitated. • There is need for greater synergy between the labour department, SDMs and CWCs so that aspects like transfer of the Rehabilitation amount to the concerned district, dispatch of the release certificate to the DC of the district and transfer of the child are handled in a coordinated fashion. Interstate Coordination: Rehabilitation of Children in Source State and Convergence of Services The children restored to the family in the source states were often actually trafficked from the source state due to their vulnerability and they may face similar vulnerabilities even after restoration. Therefore the responsibility of the source state to develop mechanisms to reintegrate these children and rehabilitate them educationally as well as economically is important. The source states receive the rehabilitation amount for restored children in their respective district child labour welfare fund from the Labour department, Government of NCT of Delhi and the District Magistrates also receive the Copy of the release certificate for each child bonded labour from the Sub divisional magistrates, department of revenue, government of NCT of Delhi. The rescue and restoration efforts would lose meaning if the child is not rehabilitated and integrated in the society.

23 The source state is required to provide the rehabilitation benefits to restored children from the Rs 20,000 as well as rehabilitation amount of Rs 20,000 under the centrally sponsored scheme for rehabilitation of bonded labour. It is also important that the source states ensure that each child has a rehabilitation plan both in terms of education as well as economic rehabilitation. This is possible only through convergence of services for the said child specially linked to existing government scheme. The Action Plan also refers to the role of the Resident Commissioners of respective states who were deemed to be links for interstate coordination for all such children. There have been some positive experiences where Resident Commissioners have facilitated restoration and followed up the cases of rehabilitation. But much more needs to be done to improve the number of restored children. This can be made possible through better communication practices and coordination mechanisms. Role of State Commissions for Protection of Child right The Commissions for Protection of Child Rights Act provides for wide scope to the State Commissions in ensuring the rights of the children. The states are empowered to monitor and reflect on policies as well as take cognizance on a case by case basis. The Delhi Commission has been proactively involved in monitoring of the Action plan through well defined systems and is of the strong belief that procedures at other Commissions can be instrumental in streamlining interstate coordination for more effective rehabilitation of child labour.

24 PRESENTATION ON CHILD LABOUR by Sh. Rajender Dhar, Addl. Labour Commissioner, GNCT of Delhi

CHILD LABOUR- OLD PRACTICES • Enforcement of Child Labour Regulation and Abolition Act, 1986 in a normal routine manner. • Emphasis was on rescue of child labour from hazardous occupations and processes. • Rescue operations were conducted solely by labour department. • Challans for prosecutions in violation of sec 3 were filed in the court of Metropolitan Magistrate by LI. • There was no concept of rehabilitation and task force. • Rehabilitation amount was not to be recovered. IMPORTANT JUDGEMENT OF APEX COURT DATED 10.12.1996 (M.C. MEHTA CASE)-I • Hon’ble Supreme Court of India in this judgment specifically focused on the rehabilitation of rescued child labour and decided rehabilitation package of Rs. 20000/- per child from the employers. • State Governments also to provide job to one of the members of the child labour family or pay a sum of Rs. 5,000/- for the rehabilitation of Child Labour. IMPORTANT JUDGEMENT OF APEX COURT DATED 10.12.1996 (M.C. MEHTA CASE)-2 • Every state formulated child labour rehabilitation cum welfare society. • Corpus funds as rehabilitation package to be deposited in these societies. • Interest amount to be utilized for rehabilitation of child labour i.e. education, health care, medical etc. etc. • Mainstreaming of child in a formal school. • Apex court did not clarify the recovery procedure regarding rehabilitation amount. IMPORTANT JUDGEMENT OF HON’BLE DELHI HIGH COURT DATED 15.07.2009 • The Hon’ble Court Laid down the mechanism for rescue operations, repatriation and rehabilitation of the rescued child labour. • Role and responsibilities of various stake holding departments was defined in details. • Setting up of state level steering committee to oversee the functioning of child labour rehabilitation cum welfare society. • Setting up of District Task forces under the chairmanship of DC(Revenue) and it comprises of members of various stake holding departments- MCD, NDMC, Labour, Police, WCD, CWC, Education, Health, NGO, etc. etc. • Recovery of rehabilitation package as arrears of land revenue. POST HON’BLE DELHI HIGH COURT JUDGEMENT DATED 15/07/09-1 • 9 District Task Force have been constituted in the year 2008-09. • Task force teams are headed by DC(Revenue) and has representatives drawn from Police, WCD, Health, Education, Labour, CWC, Revenue, MCD, NDMC and NGO. Dy. Labour Commissioner is the member secretary of the task force.

25 • Forte nightly meetings are convened by DC(Revenue). • Based on information by Civic society, NGO, Print media, any citizen and other sources, rescue operations are conducted by district task force teams from time to time. • Preparations are made before conducting rescue operations. • Confidentiality regarding rescue date, site and address is maintained. • Child Labour Act, JJ Act and Bonded Labour Act are simultaneously applied in the rescue operation by concerned departments. • Rehabilitation amount of Rs 20000/- per child is also recovered at site in most of the cases (hazards processes and occupations) • Minimum wages wherever due are also recovered at site from the employers. In a few cases claims under Shop Act/ MW Act are also filed before Authority i.e. District DLC. • Establishments are also sealed by Revenue officials. • In large no. of cases employers are also arrested from the site by police authorities under JJ Act. PROCESS OF RESCUE OPERATIONS-1 • Task force members conducts the rescue operation at pre-identified site/ address. • Child labour are made comfortable foremost as they are not defaulters /criminals . • Rescued child labour are safely transported to nearest police station for their safety and recording of their statements. • Child labour are then produced before concerned CWC by police officials. • CWC directs the custody of rescued child labour to concerned children home/ Mukti Ashram as the case may be. • Concerned NGO’s are actively associated in entire process of rescue operations. • Establishments are sealed by revenue officials. • Defaulting employers are arrested by police authorities. • In case of default on the part of employer to pay rehabilitation amount at site, recovery certificate is issued against them by Labour department through revenue officials. The said amount is then recovered as arrears of land revenue. The said amount is deposited in Delhi Child Labour Rehabilitation cum Welfare Society. • Rescued child labour belonging to outside states is repatriated to his native state through CWC officials and Office of the Resident Commissioner of the State is also associated in this process. • Rehabilitation amount alongwith state contribution of Rs 5000/- per child is sent to the District Magistrate of the concerned State. • Challans against defaulting employers in violation of Section 3 are filed by Labour Department/ police officials in the court of MM. REHABILITATION OF CHILD LABOUR • Since 96-97% of the rescued child labour belongs to other states hence only 3-4% rescued child labour is Delhi based. • Rehabilitation of child labour is the human face of labour department.

26 • Imparting informal education to rescued child labour had been planned under INDUS child labour project and the same was later on envisaged in NCLP. • Govt of Delhi had operationalised about 45 TEC’s to impart informal education to the rescued child labour in year 2008-09. • Since out stationed child labour have to be repatriated to their native states, therefore, presently, only 5 TEC’s have been proposed to be set up in Delhi out of which 2 TEC’s are functional at present and are being run by NGO-Prayas INITIATIVES BY GOVT OF DELHI • Special permission sought from MCD vide which rescued child labour can be admitted in any of MCD schools during any academic session. Order issued by MCD dated 08.02.2008. • Private Placement Agency Bill(Draft)- to regulate working of private placement agencies. • RSBY cover for Domestic Workers(over 18 yrs of age) • Proposed Delhi Swavlamban Yojna cover for domestic workers (over 18 yrs of age-pension scheme) • Extending benefits of various welfare schemes under The Unorganized Workers Social Security Act, 2008- to domestic workers (over 18 yrs of age). SECTOR SPECIFIC CHILD LABOUR IN DELHI • Zari and embroidery Industry • Rag picking • Shoe making (upper) • Purse and plastic items • Domestic sector as domestic workers-placement agencies • Dhaabas / tea stalls • Automobile workshops DELHI CHILD LABOUR FIGURES FROM 15.07.09 TO 31.05.13 NO. OF RESCUE OPERATIONS :- 1450 TOTAL NUMBER OF RESCUED CHILD LABOUR :- 3734 BELOW 14 YRS :- 2357 ABOVE 14 YRS :- 1377 DETAILS OF PENAL ACTION FROM 15.07.2009 TO 31.05.2013 • REHABILITATION AMOUNT RECOVERED :- RS 1,17,99,360/- • ARREARS OF MINIMUM WAGES RECOVERED :- RS 35,13,715/- • NUMBER OF UNITS SEALED/EMPLOYERS ARRESTED :- 232 • NO. OF PROSECUTIONS FILED :- 1450 BY LABOUR DEPARTMENT :- 449 BY POLICE :- 1001

27 AMOUNT RELEASED TO THE OTHERS STATES BY DELHI CHILD LABOUR REHABILITATION-CUM- WELFARE SOCIETY Year Bihar West Bengal Uttar Pradesh Other States Total 2010 Rs.64,25,000/- Rs.1,25,000/- Rs.5,25,000/- Rs.25,000/- 71,00,000/- for 257 for 5 for 21 for 01 for 284 Child Labour Child Labour Child Labour Child Labour children 2011 Rs. 21,25,000/- Rs.13,50,000/- Rs.5,50,000/- Rs.25,000/- 40,50,000/- for 85 for 54 for 22 for 01 for 162 Child Labour Child Labour Child Labour Child Labour children 2012 Rs. 40,75,000/- Rs.6,00,000/- Rs.25,50,000/- Rs.4,50,000/- 76,75,000/- for 163 for 24 for 102 for 18 for 307 Child Labour Child Labour Child Labour Child Labour children Total Rs. 1,26,25,000/- Rs.20,75,000/- Rs. 36,25,000/- Rs.5,00,000/- 1,88,25,000/- for 505 for 83 for 145 for 20 For 753 Children children children children children DIFFICULTIES AND SHORTCOMINGS • No standard SOP’s developed. • No coordination with Resident Commissioners of various states. • No guidelines regarding utilization of rehabilitation amount by various state Child Rehabilitation cum Welfare Societies. • Strengthening of State Societies and frequent interaction with them. • Role and responsibility of TEC’s to be well defined. • No tracing / tracking mechanism in position. • Issues of opening of bank account for minor child labour for transferring of minimum wages. • In many cases, rehabilitations cheques are received back due to non tracing of native address of child labour/incorrect name of the society of the state. • Providing job to adult member of rescued child labour by state government in lieu of Rs. 5000/- (State Share). SUGGESTIONS FOR IMPROVEMENT • Penal provisions to be reinforced. • Fine to be enhanced. • Rehabilitation package amount may be revised. • Employment of child labour to be made as non-bailable offence. • Definition of child labour to be revisited (upto 18 years) • Uniform utilization of rehabilitation amount by all state societies • Interest amount is too meager for rehabilitation of child labour. • TEC’s role and duties to be well defined. • Linkages with other welfare schemes for the family members of rescued child labour • Requirement for inter-state coordination.

28 PRESENTATION by Delhi Police by Sh. S.B.K. Singh, Joint Commissioner

Prevention, Rescue, Repatriation and Rehabilitation of Child Labour Key concepts Ø Prevention Ø Rescue Operation Ø Post-rescue operation Ø Shelter for rescued children Ø Rehabilitation Prevention Ø Child labor department to make effective strategy for prevention of child labor • Awareness and sensitization of concerned officials of their respective roles • Public awareness strategy • Regulation of recruitment/placement agency • Identification of middle man and agents involved in trafficking of children or labor • Creation of monitoring committees at both the sources as well as demand areas • Conduct regular survey of having high probability of child labor Rescue Operation Ø District Task Force to identify establishment where children illegally employed Ø Department of Labour is responsible for initiating and coordinating efforts towards legal and administrative action Ø SDM to inform district DCP for adequate force for rescue operation Constitution of rescue team Ø The Department of Labour Ø The Police Ø The Municipal Corporation of Delhi Ø Social Welfare Officer Ø Probation Officer Ø Child Welfare Committee Ø NGOs or social organization Ø Doctors with first aid kit Ø Lady Police/Volunteers when rescuing girls Department of labour will be responsible for initiating and coordination Role of Police in rescue operation Ø Provide sufficient force required by task force Ø ACP personally supervise the raiding party Ø Register FIR, arrest defaulters and rescue of children Ø Produce rescued children before the child welfare committee

29 Ø Follow up investigation of cases in association of labour department Ø ADCP-I of the district personally attend the monthly District Task Force meeting to review the operations conducted during the month and discuss for further improvements Post rescue operation Ø Medical examination of children within 24 hours Ø Investigation and collection of evidence Ø Production of children before Child Welfare Committee Ø Child Welfare Committee shall be guardian of rescued children who are empowered to take decision in the best of such children Shelter for rescued children Ø Rescued children to be kept in temporary shelter homes/drop in centres until arrangements made for their repatriation Ø Social Welfare department shall monitor children till they are restored to their families and to ensure arrangement for transport, food, clothing, etc. required for children Rehabilitation Ø Rehabilitation includes two independent components • Educational rehabilitation for the child and ; • Economic rehabilitation for the family Ø Labor department and District Collector of the home district of the rescued children shall be responsible for implementation of rehabilitation plan Ø Social welfare department to extend child line toll free 1098 helpline service and improve infrastructuring shelter homes

Additional Measures taken by Delhi Police for Combating Human Trafficking in Delhi Ø In pursuance of decision in the meeting held in MHA on 22nd September 2006, Nodal Officers appointed. • State level – DCP/Crime assisted by ACP/Kidnapping Section Crime Branch. • District level – One ACP in each district. Ø FIR invariably registered in respect of missing children. Ø On 10.05.2012 a meeting organized with the Chief Justice Delhi High Court for trial of human trafficking cases in Fast Track Court Ø In compliance of Hon’ble High Court Delhi CWP (249/2009) order dated 16.03.2011:- • Anti Human Trafficking Units have been created in all the districts headed by an ACP. Ø Cases of children between 3 to 8 years of age, missing for more than 4 months, transferred to AHTUs Ø State level three days workshop for IOs of AHTUs held recently. Ø TOT Course organised by MHA in P.T.C

30 Steps taken by Delhi Police for safety of juveniles and children in the need of care and protection Ø In every police station atleast two trained police officers has been designation as Juvenile Welfare Officer to handle the cases of juveniles and children Ø DCP/SPUW&C has been designated as nodal officer in Delhi to coordinate the problems of juveniles and children Action under Child Labour (Prohibition and Regulation) Act 2012 2013 (upto 31st July) No. of Cases Reported 78 44 No. of Victim Rescued 529 308 No. of person arrested 152 83

Action under Bonded Labour System (Abolition) Act 1976 2012 2013 (upto 31st July) No. of Cases Reported 5 15 No. of Victim Rescued 15 168 No. of person arrested 10 25 Problems being faced by police Ø Social Welfare Department do not identify premises properly before the rescue operation Ø Rescue operation continue for long periods which some times sensitize offenders who leave premises in advance Ø Insufficient arrangement for transportation and food Ø Identity of children to be rescue not ascertained in advance which causes confusion during raid Ø Medical examination of rescued children needs to be done in the raiding party Ø Production of rescued children before the Court during trial creates problem because of non availability at the given address Suggestion Ø National fund for Rehabilitation to be created Ø Corporates can be encouraged to donate to this fund as part of 2% of CSR initiative

31 PRESENTATION OF DEPARTMENT OF WOMEN AND CHILD DEVELOPMENT GOVT. OF NCT OF DELHI Number of Child Laborers rescued during the year 2012 – 2013 (Cases handled by Child Welfare Committees) MONTH-WISE DISTRIBUTION Months CWC-I CWC-II CWC-III CWC-IV CWC-V CWC-VI CWC-VII Total April, 2012 5 4 16 1 3 12 0 41 May, 2012 21 25 95 81 45 0 0 267 June, 2012 12 1 30 0 32 42 0 117 July, 2012 20 29 40 20 47 0 0 156 August, 2012 11 7 19 0 42 0 5 84 September, 2012 99 25 51 20 13 17 9 234 October, 2012 6 1 0 3 29 0 5 44 November, 2012 9 1 0 0 0 0 3 13 December, 2012 82 29 0 14 0 64 14 203 January, 2013 10 2 25 73 42 94 3 249 February, 2013 19 6 0 9 22 39 6 101 March, 2013 14 4 42 6 26 15 21 128 Total 308 134 318 227 301 283 66 1637

Number of Child Laborers rescued during the year 2012 – 2013 (Cases handled by Child Welfare Committees) STATE-WISE DISTRIBUTION STATES CWC-I CWC-II CWC-III CWC-IV CWC-V CWC-VI CWC-VII Total Jharkhand 149 13 3 7 15 2 - 189 Assam 57 2 0 1 0 0 - 60 Chhattisgarh 16 0 0 0 0 0 - 16 West Bengal 67 36 18 10 192 8 - 331 Bihar 6 44 167 115 0 95 - 427 Madhya Pradesh 0 2 0 0 0 1 - 3 Uttar Pradesh 0 30 38 18 56 81 - 223 Delhi 0 6 21 14 11 2 - 54 Rajasthan 0 1 0 0 0 0 - 1 Nepal 0 0 42 57 9 0 - 108 Other 13 0 29 5 18 0 - 65 Total 189+94 0+66 160+1477 308 134 318 227 301 283 66 1637

32 Recovery of Minimum Wages by Child Welfare Committees (2012 – 2013)

Child Welfare Committee Amount of minimum wages recovered/ pending (Rs.)

Child Welfare Committee-I 28,87,930

Child Welfare Committee-II 18,31,222

Child Welfare Committee-III 9,14,334

Child Welfare Committee-IV 33,212

Child Welfare Committee-V 14,64,200

Child Welfare Committee-VI 9,87,266

Child Welfare Committee-VII 16,26,771

Total 97,44,935

33 Hon'ble High Court of Delhi judgment in W.P. (Crl.) No.82/2009, W.P. (Crl.) No.619/2002 and W.P. (Crl.) No.879/2007 dated 24 December 2010

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 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.

34 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

35 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.

36 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

37 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

38 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.

39 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

40 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.

41 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

42 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;

43 (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;

44 (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

45 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

46 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.

47 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

48 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:

49 "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,

50 (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

51 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

52 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

53 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;

54 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

55 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,

56 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;

57 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;

58 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

59 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,

60 (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 :

61 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;

62 (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.

63 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) DECEMBER 24, 2010 JUDGE

64 65 66 Action Plan for Abolition of Child Labour in Delhi 2010 including Hon'ble High Court of Delhi judgment in W.P. (C) 9767/2009 and W.P. (Crl.) 2069/2005 dated 15 July 2009 PART I BACKGROUND Constitution of the Committee Pursuant to the Order of Hon'ble High Court of Delhi dated 24.9.2008, issued in the WP (Crl.) 2069/2005, WP(C) 4125/2007 and WP(C) 4161/2008, a Committee was constituted by the National Commission for Protection of Child Rights (NCPCR) vide OM dated 3.10.2008, comprising the following: i. Chairperson, NCPCR, Delhi - Chairperson ii. Secretary, Labour Department, GNCTD - Member iii. Secretary, Social Welfare Department, GNCTD - Member iv. Secretary, Education Department, GNCTD - Member v. Secretary, Revenue Department, GNCTD - Member vi. Secretary, Health Department, GNCTD - Member vii. Commissioner of Police, Delhi - Member viii. Commissioner, Municipal Corporation of Delhi - Member ix. Member Secretary, NCPCR - Convener 1.1 The Committee had the following mandate: To formulate a detailed Action Plan for strict enforcement and implementation of the Child Labour (Prohibition & Regulation) Act (CLPRA), 1986 and other related legislations To suggest measures for timely recovery and proper utilization of funds collected under the Direction of Supreme Court dated 10.12.1996 in the case M.C. Mehta vs. State of Tamil Nadu To suggest measures pertaining to education, health and financial support for the rescued children To suggest measures for effective coordination between various Departments/authorities of the Government of NCT of Delhi (GNCTD) as well as with other States from where children are brought to work in Delhi Consultation Process 2.1 Meetings of the Committee i. On 10th October 2008 at NCPCR Conference Room, presided over by the Chairperson, NCPCR, and attended by the Labour Secretary, Director & Joint Director, Department of Women and Child Development (DWCD), Director (Social Welfare), Deputy Secretary (Health) from GNCTD, Joint Commissioner of Police, Additional MHO (School Health Scheme) of MCD, ADM (North Delhi District) and Member Secretary & Registrar, NCPCR. ii. On 10th November 2008 at NCPCR Conference Room, presided over by the Chairperson, NCPCR, and attended by the Director (Social Welfare), representative of Department of Health, Joint Secretary & Joint Labour Commissioner from GNCTD, Director (Education) & Deputy MHO from MCD, ACP (Delhi Police) and Member Secretary, NCPCR. iii. On 12th December 2008 at NCPCR Conference Room, presided over by the Chairperson, NCPCR,

68 and attended by the Secretary & Director (DWCD), Secretary (Education), Joint Secretary (Health), Joint Labour Commissioner from GNCTD, SDM (Sadar Bazar), JCP/DCP/ACP (CAW) from Delhi Police, Additional Commissioner & Deputy MHO from MCD and Member, Member Secretary & Registrar (NCPCR). iv. On 22nd February 2009 at India Habitat Centre, presided over by the Chairperson, NCPCR, and attended by the Secretary (Education), Additional Secretary (Health), Joint Labour Commissioner & Joint Director (DWCD) from GNCTD, Additional Commissioner and Director (Education) from MCD, Joint Commissioner of Police (CAW), ADM (North) & SDM (Sadar Bazar), Members, Member Secretary, Registrar (NCPCR), among others. v. Meeting with Resident Commissioner and Joint Labour Commissioner, Bihar at NCPCR Conference Room on 4th March 2009 attended by Chairperson, NCPCR and Member Secretary (NCPCR), among others. 2.2 Views received from concerned Government Departments/Authorities/Petitioner Suggestions/views/opinions and relevant information had been solicited from the concerned departments/authorities of GNCTD as well as from the petitioners and experts on the matter. Response was received from Department of Labour, WCD, Education (SSA), Health, MCD (Education & Factory Licensing Department), Delhi Police, Chairpersons of CWC (Lajpat Nagar and Kingsway Camp) and Save the Childhood Foundation (one of the petitioners). Action Research/Survey 3.1 The NCPCR team visited three different regions of Delhi to estimate (i) the magnitude of out-of-school children, child labour and their work profile and (ii) availability of support and infrastructure through government programmes as well as non- governmental organizations (NGOs). During the visit the team met community members, children, school authorities, NGOs, shop owners, employers, officials from WCD, police, etc. The areas visited were: 1. Jahangir Puri (North West) 2. Kotla Mubarakpur/ Shahpurjat (South) 3. Seelampur (North East) 3.2 The profile of the out-of-school children in Jahangirpuri (North West District) is provided in Chapter 4.

69 PART 2 DELHI ACTION PLAN FOR TOTAL ABOLITION OF CHILD LABOUR

Profile of Child Labour and Out-of-school Children in Delhi 4.1 It is difficult to arrive at an estimate of out-of-school children in Delhi. According to one estimate, Delhi has 28319471 children in the age group 6 to 13 years, of whom 2747523 are schoolgoing and 43735 (3.34%) are out-of-school. There are other estimates of out-of-school children. The survey conducted by Samajika Suvidha Sangam (Mission Convergence Directorate) shows that there are 643315 children in the age group 7-17 years of whom 450402 are not in schools. According to Sarva Shiksha Abhiyan (SSA) ,the number of out- of-school children in the age group 6-14 years in North West District was 72192 (whereas the door-to-door survey conducted by NCPCR in 9 slums of Jahangirpuri was 2929. Perhaps this discrepancy in data is due to the fact that names of children who are out-of-school and school dropouts may be continuing in the attendance registers as enrolled. All such out-of-school children are to be considered as child labourers or potential child labourers who would sooner or later join the labour pool. 4.2 As per the petitions of Social Jurist and Save the Childhood Foundation as well as the Counters (especially Dept. of Labour, GNCTD) filed in this case, the areas of concentration of child labour in Delhi are: Mitapur, Jetpur, Sangam Vihar, Khanpur Extension, Khanpur Village, Tughlakabad Village, Hamdard Nagar, Garhi Lajpat Nagar, Uttam Nagar, Kotla Mubarakpur, Kureji, Arampark, Brijpuri, Jagatpuri, Zafrabad, Wazirabad, Jahangir Puri and Seelampur. There is also evidence that such children are mainly from Bihar, Jharkhand, West Bengal and Uttar Pradesh. Strategies 5.1 T he child labour profile in Delhi is of two types (i) Out-of-school children living with their parents and (ii) Children who have come from other States without their families (as shown in para 4 ). Hence, the Delhi Action Plan for total abolition of child labour would have two strategies. The first strategy is an 'area-based approach' for elimination of child labour. Under this strategy, all children in the age group 6-14 years in an identified area will be covered, whether they are in school or out-of-school. All out-of-school children would be regarded as engaged in some form of work and being deprived of their right to education. Children in schools are to be monitored so that they do not drop out and join the labour pool. The Commission proposes that the 'area-based approach' be initiated as a pilot in the North-West district. 5.2 The second strategy is to be adopted mainly in the context of migrant child labour who are away from their families and have little or no linkage with the community. It involves a process of identification,rescue, repatriation and rehabilitation. It is proposed that this strategy be

1 MHRD/Social and Rural Research Institute (SRI) Survey on SSA, July –October, 2005. 2 Household Child Census, survey done by UEE Mission (State Project Office of SSA, Delhi), Dept of Education, Govt. of Delhi, 2008.

70 implemented on a pilot basis in the South Delhi District where there is a large number of migrant child labourers and in all other areas where information is available about the prevalence of such labour. 5.3 While the two strategies are different, it must be mentioned that they are not mutually exclusive. Should contingencies so demand, a combination of both strategies may be necessary. The enforcement of Child Labour (Prohibition and Regulation) Act (CLPRA), 1986 and Delhi Shops and Establishment Act, 1954, Juvenile Justice (Care and Protection of Children) Act (JJA), 2000 and the Bonded Labour System (Abolition) Act (BLSAA), 1976 will be applicable in both cases. It will involve a coordinated effort of all concerned departments/authorities responsible for enforcement – Labour Department for CLPRA, SDM and Revenue officials for BLSAA and WCD, CWC and Police for JJ Act. Components of 'Area-based Approach' 6.1 Objectives i) To build consensus on the issue of total abolition of child labour through Universalisation of Elementary Education. ii) To enroll all children in the age group 6-14 years in school and ensure their retention. iii) To withdraw children from work and enroll them in full time formal schools. iv) To prepare older children withdrawn from work for school and integrate them into classes according to their age through bridge courses and accelerated learning programmes. v) To build processes for ownership of the programme by all the stakeholders. vi) To build local institutions for protection of child rights. 6.2 Activities i) Mobilisation and Consensus Building (a) There is need for establishing a norm within the community that no child should work. Government must be seen as unequivocally endorsing this stand. In order to create visibility to create for the agenda of protection of child rights, various methods of mobilisation need to be adopted with the support of the community. These include: Holding public meetings, rallies and marches as well as utilizing every public function to highlight the issue of child rights Orientation for members of local institutions and youth groups Induction of teachers through trainings and provision of support structures in the wards Street theatre, child-to-child campaigns and use of children as resource persons Petitions to the government by the community and School Vikas Samiti (SVS) for enhancing school infrastructure (b) The mobilization process must culminate in the creation of local institutions which would eventually take up the issue of protection of child rights. Thus the atmosphere building exercise needs to be linked to the processes of committees and Forum of Liberation of Child Labour (Youth and Teachers' wing) strengthening of Vidyalaya Kalyan Samities. Care also needs to be taken to see that these committees meet regularly to discuss the issue of

71 children out-of-school and draw up an action plan to bring them back to schools. Care must also be taken to ensure that the core groups of these committees have members who can play a decisive role in building a consensus. (c) Action Points Youth groups, Ward Members and Municipal Councillors, etc. at the local level to be involved in the mobilization programme Government to prepare a campaign strategy either through WCD or the Education Department Clear messages on child rights, anti- begging, 'Saying no to child labour' to be publicised widely The Bhagidari Scheme of Delhi should make it mandatory to include the notification banning childlabour in domestic, shops and establishments in its guidelines. All Residents' Welfare Associations (RWAs) should display the notification in prominent places and it should permanently displayed on the notice boards of the RWAs. Hoardings against child labour should also be put up in markets and public parks, as well as within housing societies Popular mediums like FM channels and Doordarshan (DD) should repeat the message of right to education and total abolition of child labour, especially the notification banning children working in homes, shops and establishments SSA should launch a campaign to enroll all children in schools, including children engaged in begging and vending goods and newspapers on the streets and at traffic junctions Publicise information of contact persons and departments for reporting on specific complaints regarding procedures related to child labour, rescue and rehabilitation thereof, and related child rights issues ii) Reaching out to the Children (a) Transitional Education Centres (TEC)3 or Non-Residential Bridge Course (NRBC)4 Centres: Children in the age group 9-14 years are to be enlisted in these centres. The nearest school headmaster should be put in charge of the centre. The confidence of out-of-school children to study is built up through the centres and in the meantime they are motivated to abandon work and join school. The centres also become forums for assertion of rights, especially those of girl children. Often these girls share information about their marriages being arranged and seek help for calling off the proposed marriages. The role of the centres will come to an end once the children are motivated to withdraw themselves from work and get enrolled in school. Action Points Setting up of TECs/NRBCs: Each center to cover 40 children at any given point in time under NCLP or SSA 4-5 NRBCs are to be set up for every MCD/Government school or 5 NRBCs in one slum. These centers are to be linked to the schools Government to decide the total number of NRBCs required and cover all out-of-school children through NRCBCs in North West district Children currently attending Alternate Innovative Education (AIE) centres, RBC centres, mobile schools and Khulja Sim Sim projects must all be mainstreamed into formal schools The pilot exercise of NCPCR shows that 40 NRBCs are required for the 9 slums in Jahangirpuri area alone

3 TEC: Under NCLP 4 NRBC: Under SSA

72 b) Short-term Camps (3 days) About 100 children from 3 to 4 wards/slums, who have never been to school, are brought together for a short term camp (3 days) to learn and draw strength from each other. They are identified during campaigns and door-to-door social mobilization. During this process they realize that they are not alone in their struggle and they gain confidence to pressurise their parents to send them to the short term camps. There is a need to track how the parents adjust their time in order to do the work usually done by their children while the latter are attending the camps. These evidences are later used with parents while motivating them to send their children to schools. Action Points One short-term camp for one slum if it is large and for a cluster of slums if they are small Government to draw up a list of slums in North-West Delhi and earmark locations for such camps The pilot in Jahangirpuri has shown that 7 such camps need to be held for children c) Residential Bridge Course Camps (RBC) (10 months to 16 months) Older children withdrawn from work attend the residential bridge course camps where they are prepared to join school in an age appropriate class. These camps not only convert the children but prepare the parents, teachers and community at large to accept the norm that children ought to be in school. The camps also provide confidence to the community to send their children to school and add value to the process of social mobilization; and are thus serve as training centers for programme. They demonstrate the efficacy of the arguments about child labour and related issues. Action Points Setting up RBCs for the North-West District with 150 to 200 children Identifying available public spaces for conducting RBCs The pilot of NCPCR in Jahangirpuri shows that 4 RBCs (2 for girls and 2 for boys) are required for the 9 slums alone d) Retention of children in schools and prevention of child labour All children in the age group 6-8 years are to be directly enrolled and retained in schools. Care must be taken to ensure that every child enrolled in school continues to in school without any disruption until she completes Class 10. Action Points The NRBC volunteer must also play the role of social mobiliser to ensure that children attend school regularly. Wherever the TECs or NRBCs are closed due to children from these centers getting mainstreamed, it is necessary that the volunteers of the NRBCs continue with the programme to follow up issues of retention Formal schools to introduce remedial courses for school dropouts and older children Orientation to school teachers on first generation learners, school dropouts and bridge courses for accelerated learning Preparation of schools to meet the demand in terms of physical infrastructure and teachers

73 Strengthening of PTAs or School Vikas Samitis (SVS) and organizing regular meetings to monitor regular attendance of children and teachers and helping to resolve problems confronted by first generation learners e) Trainings and orientation programmes on issues relating to child labour and children's right to education along with tasks and roles of specific stakeholders All MCD and government school teachers, with focus on their role of reaching out to out-of- school children and addressing the issue of right to education for all those who have been left out Officials of departments of police, revenue, labour, WCD, education at the local level Youth groups Women's Groups Members of PTAs Members of School Vikas Samitis Volunteers in NRBCs Volunteers in RBCs Municipal Councillors and Ward Members Members of District Task Force for effective coordination of activities of rescue and rehabilitation of child labour Member of Child Welfare Committee ( CWC) Member of Special Juvenile Police Unit ( SJPU) of the District Components of the Strategy for Unaccompanied Child Labourers (Migrants) in Delhi 7.1 This strategy is meant particularly for trafficked and migrant child labour and those children who are engaged to work in sweat shops, small ghettoized dwellings and so on, even if they are based in Delhi. This strategy will include enforcement of law, rescue, interim care and protection and legal proceedings, repatriation and rehabilitation of child labour, particularly trafficked and migrant children, based on the “Protocol on Prevention, Rescue, Repatriation and Rehabilitation of Trafficked and Migrant Child Labour.”5 Wherever needed, some additional activities have been included, keeping in view the context in Delhi. This approach is based on pro-active and not reactive strategies. 7.2 The action for this strategy will be taken up in all the identified areas of South Delhi and other workplaces. At the same time, the government is to be prepared to respond to any contingency based on new information that becomes available. It is seen from the profiles that these children are engaged to work in prohibited occupations such as zari units, dhabas & hotels, bangle making, leather, auto-workshop, domestic child labour, bulb manufacturing, rag picking and so on. The estimates of such children range from 10,000 to over one lakh. Complaints have already been lodged about this and action is to be taken with immediate effect in accordance with the procedure laid out. The strategy for rescue and rehabilitation must anticipate rescuing each one of these children and be taken to its logical conclusion of enabling them to enjoy their right to education.

5 Ministry of Labour and Employment, Government of India, 2008.

74 7.3 This strategy also must be preceded by a massive campaign through the media and other means to create an atmosphere for zero tolerance of child labour in apartment complexes, as well as in all other forms of work. Meetings with clusters of employers are to be held by the Labour and WCD departments. Messages on the illegality of such employment are to be publicised. Action has to be taken against the employer and wide publicity given to the same to act as deterrent. For atmosphere building as well as enforcement, the traffic police must take action against all those aiding and abetting beggary at traffic signals. The public should be discouraged from giving alms and instead be asked to contribute to any good institution working for children. 7.4 Responsible Authorities 7.4.1. State Level: a. There should be a Steering Committee on Child Labour under the Chairpersonship of the Chief Secretary along with other concerned Secretaries of the Government of NCT of Delhi. The Joint Commissioner of Police (CAW), Delhi and a Senior Officer of equivalent rank from MCD should be members of this Committee. A representative of CHILDLINE India Foundation, Delhi region should also be a member of this Committee. The Steering Committee on Child Labour should interface on a quarterly basis with senior government officers of the source States (Bihar, Uttar Pradesh, Orissa, Jharkhand, West Bengal, Rajasthan, Chhattisgarh, Madhya Pradesh, Uttarakhand, etc.) from where migration of child labour is high. The Steering Committee on Child Labour should be responsible for bringing out a status report on child labour in Delhi and submit it to NCPCR/DCPCR and the State Child Protection Unit [provision under Section 80 of Juvenile Justice (Care and Protection of Children) Rules, 2006]. b. The Steering Committee will meet on a quarterly basis to review the cases of child labour handled by the district level Task Forces in the previous quarter and the cases pending at their level. It will also look into operational difficulties in the implementation of the relevant laws relating to child labour as well as these action plans and remove such difficulties. Further, it will redress the grievances of NGOs/activists/RWAs, etc. pertaining to child labour within a reasonable time. 7.4.2. District Level: The District Level Task Force on Child Labour will oversee and monitor all actions for identification, prerescue planning, rescue operation, interim care, prosecution of employers/violators under all relevant laws, including Bonded Labour System (Abolition) Act, 1976, repatriation, rehabilitation/social reintegration and follow-up. The Task Force will comprise the following: Deputy Commissioner of District – Chairperson Deputy Labour Commissioner – Member Secretary/ Convener Additional District Magistrate of the District - Member Deputy Commissioner of Police – Member

75 District Social Welfare Officer – Member District Urban Resource Centre (SAA) – Member District Health/Medical Officer – Member Senior most Officer of MCD in the District – Member Chairperson of the concerned Child Welfare Committee - Member Centre Coordinator, CHILDLINE (having jurisdiction over the area) - Member Voluntary organisations actively involved in the rescue and rehabilitation of child labourers in the area - Member 7.5 Procedures to be Established for Rescue Operations The rescue operation is divided into two stages: pre-rescue and actual rescue. 7.5.1. Procedures to be adopted in Pre–rescue stage to facilitate an effective rescue operation The rescue operation can be divided into two sub categories: 'minor rescue operation', where the number of children to be rescued is estimated to be less than 10; or 'major rescue operation' where the number of children to be rescued is estimated to be over 10. (a) Informant: i. Any person, including NGOs, aware of (a) the commission or omission of any act involving child labour; or (b) the procurement and/or abetment of procurement of children to be used for labour; or (c) the likelihood of any child being used for any form of child labour shall immediately inform the responsible authority. At no stage shall the responsible authority insist on actual detailed information with regard to the alleged location and other specific details pertaining to the rescue operation, with a view to safeguarding the interests of the child. ii. Information about child labour available from secondary sources, including survey findings and data available with NGOs, may be used as the basis for rescue operations. iii. In case of extreme urgency, where it is likely that the children may be harmed or disappear or if there is a grave threat to the well-being of the child, even if the number of children is likely to exceed 10 (i.e. a major rescue operation), it is recommended that the rescue be commenced immediately. iv. The informants need not actually participate in the rescue operations, unless they so desire, be made party to the information filed under Section 154 of the Code of Criminal Procedure, 1973 (FIR) or be compelled to participate as witnesses. If there is grave danger in disclosing the specific location where the child is placed, this information may be withheld on condition that the informant or his/her representative will accompany the police to the specific location at the time of the actual rescue. v. Source information should be entered in the General Diary (GD) of the Police Station (PS) in such a way that anonymity of the source/victim/location is not compromised. vi. Any rescue operation should be designed so as to include details of location, entry and exit points, ways and means of removing victims securely and preventing the disappearance of

76 traffickers. All entry and exit points must be secured. A search of the place of rescue needs to be carried out. An official conversant with the local language should be sent to the place incognito. The help of local officers/NGOs should be taken, provided the information remains confidential. Erstwhile child labourers who are willing to cooperate, could be useful in the rescue operation. A sketch map of the area is to be drawn up which could be used for briefing and for assigning specific duties to the officials who will participate in the rescue. This includes duties such as cordoning, guarding entry and exit points, locating the hide-outs, identifying a safe place to keep the rescued child labourers till completion of the rescue operation, etc. vii. The 'responsible authority' for the rescue operations will be the Deputy Commissioner of the District or, on his behalf, the Deputy Labour Commissioner. The authority receiving the information will initiate planning for a raid and rescue at the earliest but within 24 hours in the case of a major rescue operation. viii. The onus for sharing the information rests with the concerned responsible authority who has received the information from the informant, and not the informant himself/herself. ix. Wherever possible, active assistance or voluntary assistance of social organizations, NGOs or other responsible citizens should be sought to ensure that the rescue operation is carried out safely, to reduce the trauma and ensure the safe transition of the child. (b) Verification of the information provided i. In the case of a major rescue operation, where it is necessary to verify the information in the best interests of the child, the responsible authority should, at the earliest, determine prima facie whether the information provided is likely to be true. The informant(s), NGOs or any other party interested in facilitating the rescue of the child may help the responsible authority. ii. The responsible authority shall simultaneously inform all the relevant Government Departments, including, but not limited to, the Department of Women and Child Development and Child Welfare Committee, Municipal Corporation, Home Department, so as to ensure that adequate preparations are made to facilitate interim care and protection of the child as well as logistical and other requirements subsequent to the rescue operations. (c) Preparing a plan of action for undertaking the rescue operation i. In case of a major rescue operation, a plan of action shall be prepared to facilitate the safe rescue of the children and ensure that the rescue operation itself does not inflict additional trauma on the children to be rescued. ii. Care has to be taken to ensure that the District Task Force has list of all Juvenile Homes, Welfare Hostels, accommodation in NGOs, Residential Bridge Courses and other public spaces that have been identified for housing the children. In anticipation of the large numbers of children who would be rescued there must be provision for at least 1,500 rescued children at any given point of time. A district-wise plan for this will have to be made and provided for.

77 iii. Simultaneously, facilities for food, clothing and shelter are to be arranged. There should be a panel of caregivers and volunteers to be with the rescued children. There is also a need for educational intervention through SSA till such time as the rescued children are sent back home. All staff members are to be given training on caring for the rescued children. There is also a need to arrange for their security should there be any resistance from the employers or middlemen and brokers. iv. Transportation of rescued children to the home that they have been assigned to must be done immediately by the labour department. The arrangements for recording of statements by the police, DM and the labour department are to be made at the place where children are located. v. The rescue team to be involved in the actual planning shall be kept to the minimum in order to ensure secrecy and confidentiality of the rescue operation. vi. All proceedings shall be treated as being extremely confidential. vii. The rescue team shall ensure that a map of the rescue area is prepared on the basis of the information provided, with the assistance of NGOs and other duty bearers, as may be feasible, indicating where child labourers are likely to be found as well as identifying spots which may be potentially dangerous for children. (d) Preparation for Residential Shelter through RBCs, JJ Homes,NGO Shelters for Rescued Child Labour i. Identification of safe places like RBCs/Homes/Community Centres beforehand to accommodate the rescued children, so that they are not sent to the police station. Further post-rescue procedure must be done at the safe places (as mentioned above). ii. The Labour Department, being the nodal department for rescue of child labour, shall coordinate with all other relevant departments to ensure that all arrangements are in place for the comfort of the rescued children including transportation to the temporary home, food and refreshments, protection and safety, and training for the personnel of the homes/shelters. (e) Formation of the Rescue Team i. A rescue team shall be constituted to carry out a major rescue operation. The actual number team members will be determined by the estimated number of children to be rescued, the geographic area of operation and any other significant factors. The rescue team shall comprise of the following: a. A representative of the Department of Labour in the District, not below the rank of Assistant Labour Commissioner b. Sub-Divisional Magistrate concerned c. The Head/Nodal Officer of Special Juvenile Police Unit (SJPU) d. District Social Welfare Officer/District Child Welfare Officer e. Deputy Education Officer (Zonal) of MCD (wherever applicable) f. The Seniormost Officer of the Factory Licensing Department of MCD (wherever applicable)

78 g. A Member of the concerned CWC (to be nominated by its Chairperson) h. Centre Coordinator of CHILDLINE having jurisdiction over the area i. A member of at least one NGO/VO actively involved in the rescue and rehabilitation of child labour The rescue team must ensure that the rescued children kept in the Home are accompanied by a few youths from their respective home states who speak the same language to comfort the children. Being the Nodal Officer, the concerned Deputy Labour Commissioner will be responsible for prompt initiation of pre-rescue planning and necessary coordination with others concerned in this regard. ii. Orientation of all members to be involved in the rescue operation In the case of a major rescue operation, a basic orientation should be provided to all persons who are to be involved, including voluntary members, community members etc. The orientation should include a review of the various laws that are applicable, the members that are actually going to be involved in the rescue operation and their respective roles, and how they should deal sensitively with children, treating them as victims and not as offenders. 7.5.2. Procedures to be adopted in the actual rescue operation i. The rescue team should, wherever possible, be accompanied by a Sub-Divisional Magistrate (SDM), who is the implementing authority under the Bonded Labour System (Abolition) Act, 1976 and officers of the Labour Department, so that the Child Labour (Prohibition and Regulation) Act, 1986 may also be invoked wherever applicable. ii. Rescue team members shall be strategically placed in pre-planned locations in order to locate the actual employer of children in that area, and prevent the children from being relocated or moved away from the site. iii. Police personnel, including women police officers (from the concerned SJPU) shall accompany the rescue team wherever possible, and the police officers who are in the direct contact with the children shall wear civilian clothes. iv. Physical separation of employers and children to prevent any communication between them during the rescue, to ensure that the employers do not threaten the children, or brief them to misguide the police and persons conducting the actual rescue operation. At all stages, care shall be taken by duty bearers to ensure that the child is not exposed to the employer. v. The assigned member of the rescue team shall simultaneously collect evidence in the form of documents and photographs (wherever possible), that can be used to prosecute the employer. She/he should also verify the legal documents held by the employer to determine the status of the child. The police must be empowered to take possession of legal and other documents such as the employer's registration certificates or any other forms of circumstantial evidence, to be held in lien to ensure that the employer does not escape and to ensure the employer's appearance at subsequent investigations.

79 vi. The police shall give top priority to ensuring the safety of the child and to ensuring that she is treated in a humane manner. The police shall facilitate the collection of the belongings of the child along with personal items and ensure that they are kept in safe custody, to be handed over to the authorities at the Children's Home where the child is to be sent. vii. The provision under Section 21 of the Juvenile Justice (Care and Protection of Children) Act, 2000 as amended by Amendment Act, 2006 shall apply for rules regarding confidentiality. viii. Special care shall be taken to ensure that priority is given to food arrangements and transportation. ix. Immediately after the rescue operation is carried out, the police shall file an FIR under Section 154 of the Code of Criminal Procedure, 1973, in case of both a minor and a major rescue operation. The police shall ensure that the specific information of each child shall be recorded. The FIR should take cognizance of offence under the appropriate criminal laws as applicable. x. The details of every child must be included in the FIR. In case the rescue is conducted by Labour Department officials during the normal course of inspection or on the basis of a specific complaint, the responsibility for lodging an FIR of cognizable offence under the appropriate criminal law, whenever applicable, will lie with the concerned official of the Labour Department. xi. In case the rescued child also happens to be a bonded labourer, then action must be initiated simultaneously under the Bonded Labour System (Abolition) Act through the appropriate authority. xii. Every rescued migrant or trafficked child labourer, including bonded child labourers, has to be presented before the Child Welfare Committee. However, in the case of bonded child labourers, they also need to be produced before the Sub-Divisional Magistrate for grant of certificate and other compensations. This would also include the bonded child labourer rescued along with her family. xiii. After the rescue operation is carried out, only the Child Welfare Committee, as the competent authority under the Juvenile Justice (Care and Protection of Children) Act, 2000 & amendment Act, 2006, is empowered to take any decision with regard to the child, including the decision to release such children as per provision of said Act. 7.5.3. Procedures for Interim Care & Protection and Legal Proceedings (a) Medical Examination i. Within 24 hours of completion of a major rescue operation a medical team shall be dispatched to the place where the children are being kept to conduct a medical examination. However, admission to any Children's Home shall not be conditional to the requirement of a medical certificate.6 ii. Wherever there are actual signs of injury, hurt or the likelihood of sexual abuse, the child shall be sent to the Government hospital for further medical examination. Care shall be taken that the child is not in contact with the employer.

6 So that children are admitted immediately to the Home even at odd hours.

80 iii. The medical officer shall undertake a detailed physical examination and record the findings in writing, giving particular importance to any signs of physical and/or sexual abuse. Wherever considered appropriate, the medical officer can also recommend that the child shall be kept for further observation or sent for counselling. iv. For provisions regarding age of the child, the Child Welfare Committee shall be the competent authority. v. In the case of a minor rescue operation, the authorities of the Children's Home shall make provision to carry out the medical examination within 24 hours. (b) Investigation and Collection of Evidence In addition to the medical examination, the police shall promptly collect all forms of evidence that shall be used in the legal proceedings, which shall include but not be limited to, any documents of employment, attendance musters, photographs of the workplace, statements of children and other people and so on. (c) Procedures for the child in the interim period and producing the child before the Child Welfare Committee The Child Welfare Committee plays a significant role at this stage. Since they are not full time officers they have to be assisted to carry out the tasks at every step by the Department of Women and Child Development. The labour and police departments are also to cooperate with the CWC. i. Once the child has been rescued, she shall be produced before the Child Welfare Committee, as the competent authority, under Section 32 of the Juvenile Justice (Care and Protection of Children) Act, 2000. ii. The Child Welfare Committee as the central focal point shall coordinate and liaison with the police, Labour Department, NGOs and other relevant duty bearers to facilitate necessary procedures in the best interests of the child. iii. The Child Welfare Committee shall be the guardian of the rescued child and is empowered to take decisions in the best interests of the child. It shall have the power to secure all relevant information and documentation in order to plan the rehabilitation plan of the child. (d) Preparation of Charge Sheet i. Once the police has completed the investigation, a chargesheet shall be prepared and the judicial proceedings under the Code of Criminal Procedure, 1973 shall apply. ii. Care shall be taken to ensure that all sections that apply across different statutes are incorporated into the chargesheet, in coordination with different agencies including NGOs, as maybe required. iii. Wherever appropriate, references shall be made to all the supplementary sources of information, like the report of the probation officers, statements recorded by the Child Welfare Officers and NGO inputs so as to strengthen the chargesheet and prosecute the employers, their representatives or agents. iv. Investigation into the FIR of cognizable offences will be carried out by police having jurisdiction over the case. The Investigating Officer (IO) shall ensure that all relevant

81 evidence – material, forensic and documentary - is collected and analyzed to build a proper case for prosecution. The IO shall also ensure that all relevant and applicable provisions of the criminal laws and labour laws are invoked for the case. The IO should also collect and include as evidence relevant reports such as orders of the CWC, home enquiry report conducted under the JJ Act, reports prepared by the officials of the shelter homes/counselors/partner NGOs, etc. v. Complaints and challans under the labour laws shall be filed by the labour officials. In order to ensure that the case is covered completely, the officials must examine implementation of all applicable labour laws and assess the violations. The labour officials shall also take necessary action for obtaining compensation/claim/wage arrears on behalf of the rescued child. vi. In case it also turns out to be a case of bonded labour, the labour officials shall immediately inform the concerned executive magistrate to initiate action under the Bonded Labour Systems (Abolition) Act simultaneously. vii. As per the directions of the Hon'ble Supreme Court of India, labour officials shall also issue a notice to the defaulting employers to deposit Rs. 20,000 per child in the District Child Labour Rehabilitation cum Welfare Fund. In the case of migrant child labour, the amount will be transferred in the child's name to the District Child Labour Society to be utilized for the education of the child. viii. The labour officials would also take appropriate action for a deposit of Rs 5,000 to be made by the State Government to the Child Labour Welfare & Rehabilitation Fund for every rescued child in case employment cannot be provided to an adult member of his/her family. (e) Special measures for protecting the child i. An individual plan shall be prepared for every child by the probation officer or the honorary/voluntary probation officer, who shall determine a course of action for the immediate repatriation and rehabilitation as well as the long-term educational rehabilitation of the child in association with the Child Welfare Committee. ii. The Probation Officer shall communicate with the child and identify his/her areas of interest which shall be considered when determining the rehabilitation plan and identifying appropriate actions that can be adopted. 7.5.4. Procedures to be established for the repatriation of the child (a) Assessment and verification of the child's background on the basis of the information provided i. The Child Welfare Committee shall undertake a detailed assessment to verify the information provided by the child and have a dialogue with corresponding Child Welfare Committees in the cited place of origin. ii. In the case of claimants of the child, the CWC shall adopt extreme caution and shall seek specific documentation, wherever possible, to verify the claims, considering the risks of claims by the employers or their representatives or agents. iii. Considering the risk of employers tutoring the child, the Child Welfare Committee shall adopt extreme care and caution and satisfy itself completely when taking a decision and

82 shall record the reasons for taking the decision in writing. iv. Fo r children who cannot be repatriated, care shall be taken to ensure their effective short- term as well as long-term rehabilitation within the State of Delhi. (b) Transport, logistics and other preparations Repatriation shall be undertaken by the Child Welfare Committee only if it is in the best interests of the child and shall be intra-state or inter-state. (c) Intra-State Repatriation i. For any child under the age of fourteen years, the Child Welfare Committee in the place where the child is rescued shall coordinate with the Child Welfare Committee in the home district to repatriate the child. ii. For a child between the ages of fifteen to eighteen, the Child Welfare Committee shall have the discretion to determine the appropriate course of action, on a case by case basis7, keeping the best interests of the child in mind. iii. The Child Welfare Committee in the home district shall coordinate with the District Collector/District Magistrate to tracing the family of the child and inform the Child Welfare Committee of the district where he/she has been rescued of the course of action that would be adopted. (d) Inter-State Repatriation i. In the case of inter-State Repatriation, a dual strategy shall be adopted based on the age of the child: – For a child below the age of fourteen, the child shall be handed over to the Child Welfare Committee in his/her home state, with a view to prevent false claimants for the child in Delhi and to prevent the possibility of re-entry into child labour. – For a child between the ages of fifteen to eighteen, the Child Welfare Committee shall have the discretion to determine the appropriate course of action, keeping the best interests of the child in mind, on a case to case basis. ii. The process proposed by the Resident Commissioner of Bihar shall be adhered to (see Box 1). In both cases, the CWC should do the needful in coordinating with the Office of the Resident Commissioner of the concerned state based in Delhi. Protocol for Repatriation and Rehabilitation proposed by Government of Bihar The children from Bihar constitute a big proportion of the rescued children in Delhi. Keeping this in view, the government has proposed a protocol to work on the issues of Prevention, Rescue, and Repatriation & Rehabilitation. For total abolition of the child labour from the state, the Bihar Government's measures are as follows: a) Constitution of a Commission on Child Labour b) Creation of a position of Joint Labour Commissioner (JLC) at Bihar Resident Commissioner's office, New Delhi.

7 We leave the CWC as the appropriate authority to determine the course of action, considering and balancing several critical realities and specific circumstances, on a case to case basis for children between the ages of 15 -18.

83 c) Creation of Special Task Forces at District and State levels. d) Preparation of State Action Plan. e) Implementation of NCLP. (NCLP is active in 24 districts of the 38 districts of Bihar.) With regard to the repatriation of rescued child labourers in Delhi, the JLC would arrange repatriation to Patna at Government expense and the district labour officials would make the arrangements for sending the children to their respective villages and handing them over to their parents. Once the rescued children are handed over to their parents, Government would deposit Rs. 5,000 per child into the fund of the Child Labour Welfare Committee chaired by the District Magistrate of the concerned district. Rs. 20,000 received as compensation from the employers is also deposited in the same fund. The rescued child is given Rs. 1,500 for one month's ration and Rs. 200 for one set of clothes. These children would be sent to the NCLP school with a stipend of Rs. 100 per month The State Government has developed an action plan to make sure the benefits of various welfare schemes under HRD, Health, Rural Development, Urban Development, Social Welfare Department, Minority Welfare Department, SC/ST & Backward Class Welfare Department and Information and Public Relation Department reach the intended beneficiaries. Source: Joint Labour Commissioner, Bihar Bhawan, New Delhi 7.5.5. Procedures for the Rehabilitation and Social Reintegration of the Child Labourer a) To ensure the effective rehabilitation of the child, the methods outlined under Chapter IV of the Juvenile Justice (Care and Protection of Children) Act, 2000 and as amended by Amendment Act, 2006 shall apply. b) Towards this end, a rehabilitation plan shall be prepared by the Child Welfare Committee in the home district in coordination with District Collector, in case of intra-state repatriation; and by the Child Welfare Committee in the home state in case of inter-state repatriation. c) The repatriation plan shall include two independent components: the educational rehabilitation of the child and economic rehabilitation of the family. The District Collector is responsible for implementing the rehabilitation plan in case of intra-state rehabilitation. In case of inter-state repatriation, a report shall be sought from the Child Welfare Committee in the home State, to ensure effective rehabilitation of the child. d) The repatriation plan must include measures that are sustainable and match both the short-term as well as the long-term rehabilitation of the child and his/her family. The importance of education through formal schools as a rehabilitation measure for all children rescued from child labour is of utmost importance. The residential bridge courses under SSA is a policy that has to be integrated into the plan. Further, if necessary, the strategies for the educational rehabilitation of the child which have been detailed in Chapter IV Section 40, 41, 42, 44, 45 of Juvenile Justice (Care and Protection of Children) Act, 2000 and amended by Amendment Act, 2006 and as per provision mentioned in “Protocol on Prevention, Rescue, Repatriation and Rehabilitation of Trafficked & Migrant Child Labour”8 may be pursued.

8 Ministry of Labour & Employment, Government of India

84 7.6 Training and capacity building of duty bearers The State shall ensure that all duty bearers are regularly trained and that capacity building processes are undertaken at periodic intervals so as to create a well trained, sensitised and committed work force. 7.7 The Responsibilities of the Respective Departments9 7.7.1. Delhi Police a) The concerned Deputy Commissioner of Police should: i. Make the necessary arrangements for raids by the police as per the demand and requirement of the concerned District Child Labour Task Force. ii. Supervise and ensure that the area Assistant Commissioner of Police (Sub-Divisional) participates in the raids conducted by the District Child Labour Task Force. Further prosecution processes must be handled by the representative of the Special Juvenile Police Unit (SJPU) of the concerned district. The SJPU representative must be trained and oriented on the issue of child protection and child rights. b) The Police Training College at Jharada Kalan must incorporate child rights and child protection issues into the curriculum. c) The police should take steps to arrest the owners/employers of the child labourers as per provision of Indian Penal Code Sec. 331, 370, 374 and 34 as well as provisions of Sec. 23, 24, 26 of the Juvenile Justice (Care and Protection of Children) Act, 2000. They should register the crime and take all necessary steps to conduct further criminal proceedings. d) The police should treat the liberated child labourers with respect and dignity and hand them over to Children's Home in the charge of officers of the Department of Women and Child Development. e) Put forward the cases of child labour before the Child Welfare Committee as per section 32 of JJ (Care and Protection of Children) Act, 2000 with the help of District Child Labour Task Force. 7.7. 2. Department of Labour, GNCTD The Department should a) Keep the areas in its jurisdiction where child labour is likely to be hired under continuous active surveillance. b) Take action within 24 hours in case a large number of child labour is found to be employed , by carrying out a raid through District Child Labour Task Force, after contacting the Deputy Commissioner and Police officers. If the number of child labour employed is small, then action should be taken to liberate them on the same day itself with the help of departmental colleagues and police. c) Keep track of the planning and conduct of every child labour rescue operation, it should be ensured that an adequate number of officers and shop inspectors are present during the raid. There should be active participation in the liberation of child labour. Necessary action should be taken against the person employing child labour as per the provisions of Sec. 3 of

9 Some of these roles have already been mentioned earlier in the Delhi Action Plan. However, for better understanding and easy reference, the roles and responsibilities of various departments/authorities involved in the process are provided in a consolidated manner.

85 the Child Labour (Prohibition and Regulation) Act, 1986 if this is applicable. If Section 3 of the Act is not applicable then action should be taken under the provisions of Sections 7, 8, 9, 11, 12 and 13. d) Liberate the child worker from the clutches of unscrupulous employers even if the work being done by the child does not fall under the dangerous job category and hand him/her over to the police with a view to eradicate the undesirable practice of child labour and bring these children into the mainstream of formal education. e) Document all details of the rescued child worker by obtaining details from him/her in an affectionate manner and furnishing a copy to the police department. A complaint against the employer of the child labourer should be lodged (with the help of Task Force, if necessary) with the police and the child's statement should be recorded as a matter of form. f) While obtaining information from the child labourer, if it is found that the employer had paid any money as financial assistance, loan, advance, etc. to the parents, then an immediate report should be filed with the Sub-Divisional Magistrate for declaring the child labourer as 'forced' labourer and a copy should be endorsed to the Government through the concerned Deputy Commissioner. g) Take due care of the liberated child labourers till they are sent to the Children's Home and see that they are provided with proper food, water and other facilities. h) As per the definition specified in Section 2(K) of the Juvenile Justice (Care and Protection of Children) Act 2000, an individual who is below 18 years of age should be considered as a child. Therefore in the course of raid, if child workers above the age of 14 are found, then they should also be liberated from the clutches of the employer(s) and handed over to the police. i) Under Sec. 3 of Child Labour (Prohibition & Regulation) Act 1986 as also, under the directives issued by the Hon'ble Supreme Court in the M.C. Mehta case, 1996 a sum of Rs. 20,000/- (Rupees Twenty Thousand) should be recovered from the employer of the child labourer, against whom legalproceedings have been initiated. This sum should be credited to the District Child Labour Welfare Fund of the district to which the child labourer originally belongs. j) The concerned Deputy Labour Commissioner shall ensure that the District Child Labour Task Force meets regularly and that the Assistant Labour Commissioner participates in the raids conducted by the District Child Labour Task Force. It should also be ensured that at least one Labour Inspector at the district level be designated for handling the issue of children, and be given proper orientation. k) Strengthen the intelligence network on the status of out-of-school children, places of work involving children and their employers/contractors/middlemen, etc. through the community workers of the Labour Department. l) Take necessary legal action against the employers of child labourers under the following legislations and corresponding Rules(wherever applicable): i. Delhi Shops and Establishment Act, 1954 ii. Minimum Wages Act, 1948

86 iii. Motor Transport Workers Act, 1961 iv. Factory Act, 1948 v. Interstate Migrant Workmen (Regulation of Employment and Condition of Services) Act, 1979 vi. Contract Labour (Regulation & Abolition) Act, 1970 m) Every shop owner should declare voluntarily, on a display board, “This shop has no child labour”. The same should be certified by the Labour Department on the recommendation of local voluntary organizations and CHILDLINE Centre of the concerned area. n) Motivate/involve the RWAs to declare their colonies as “Child Labour Free Colony”. 7.7.3. Women and Child Welfare Department, GNCTD a) Generate awareness among the masses against the practice of child labour. Steps should be taken for the rehabilitation of local child labourers with the help of the Deputy Commissioner (DC) and voluntary organizations, if the child labourer happens to be from the local area. b) Take charge of child labourers liberated by the District Child Labour Task Force and see that they are provided adequate food, clothing and shelter. Due care should be taken for their safety. c) If the child worker happens to be a local person, s/he should be inducted into the mainstream of education with the help of the Education Officer. If possible, s/he should be provided job-oriented technical education. d) The Superintendent of the Children's Home to which the rescued child labourers have been sent should arrange for interaction/taking of statements by the concerned Child Welfare Committee. e) Information about instructions of the Child Welfare Committee should be independently submitted to the concerned DC and Labour Commissioner every month. f) District Child Welfare Officer, DWCD, GNCTD is the designated nodal officer for the District Child Labour Task Force. g) Issue letters to the respective CWCs to nominate a member who can be part of the District Child Labour Task Force. Such members can serve as links between the CWC and District Child Labour Task Force for all practical purposes, including attending the pre-rescue planning meeting of the Task Force, issuing orders for the interim care and custody of the rescued child, preparing the Social Investigation Report (SIR), verification/identification of their families and their ultimate repatriation/follow-up. The CWC Member will conduct the inquiry and prepare the SIR under JJ Act in a child friendly manner at the camp/home/hostel/RBC where the children have been lodged. h) Keep the Homes ready for the reception and suitable accommodation of the rescued child labourers. 7.7.4. Education Department, GNCTD a) In order to absorb the rescued child labourers into mainstream of education without any discrimination (sex/caste, etc.), they should be offered free and compulsory education and the department should ensure that they, i.e. the rescued child labourers, receive it.

87 b) Various schemes sponsored by the Central and State Governments should be implemented for this purpose. c) During the period of education, the rescued child labourers should get the benefit of the free meals scheme of the State Government. d) The Department will set up initially 250 Alternative Innovative Education Centres (AIEC)/NRBCs in the areas where child labour is concentrated and/or in the areas having a large number of out-ofschool children. The Department would also ensure that all the children at NRBCs/RBCs are given free mid-day meal (as assured by the Department, vide UEE Mission letter no. 39, dated 11.4.2009). e) Care should be taken to see that the child labourer develops a liking for education. f) The Education Officer and Principal of the school should be held responsible for the dropouts among the child labourers receiving education. g) Parents of child labourers should be counseled to stress the importance of education for their children. h) Monitoring of academically weaker children in schools will be done with the involvement of CRC and NGOs to prevent dropouts (as assured by the Department, vide UEE Mission letter no. 39, dated 11.4.2009). i) The concerned District Urban Resource Centre Coordinator (DURCC) will send a monthly report to the Dy. Commissioner of the District with a copy to the SPD (SSA) and Director (Education), GNCTD about the following: i. School-wise and class-wise attendance and dropout rate corresponding to the number of children enrolled ii. Number of out-of-school children in the district (school-wise and class-wise), along with the list of names iii. The efforts made for awareness/sensitization/ educational counseling of these children and their parents. Such reports should be examined in the next meeting of the district level Task Force and the state level Steering Committee, as well as at the highest level in the Education Department of GNCTD for remedial measures. j) The Department will ensure that all its schools have an adequate number of teachers in proportion to children in each class (subject specific, wherever applicable) and that they are regular and punctual. It should also introduce a system of incentives/rewards for schools which have higher enrolment/retention of out-of-school children and which prevent dropouts as well as a system of disincentives for those who consistently fail to identify, enroll and retain the out-of-school children. 7.7.5. Health Department, GNCTD a) Complete medical examination of rescued child labourers should be carried out after the raid. b) Immediate medical treatment should be initiated, if required. c) Certificate of age (to be issued by medical officers not below the rank of Government Assistant Surgeon) of the rescued child labourer should be

88 furnished immediately to the investigating police officer or Government labour officer as per their demand. d) Expenses incurred towards the issuance of medical certificate and treatment should be met by the DC from the District Child Welfare Fund and should be recovered from the employer of the child labourer and reimbursed to the District Child Welfare Fund. 7.7.6. Municipal Corporation of Delhi (MCD) a) Under its Slum Development Programme, the MCD should enhance the standard of living of all children living in the slums within its jurisdiction and particularly ensuring effective access to free health checkups and medical care, quality education, recreation, vocational training and community life. b) MCD schools should provide free and compulsory education to all rescued child labourers belonging to Delhi irrespective of their age (arranging accelerated learning for the older children through NRBCs wherever necessary for mainstreaming them into age appropriate classes) without any discrimination (sex/caste, etc.). They should mentor the non-formal education programmes run by NGOs in various slums with a view to bringing all out-of-school children in the area into the fold of mainstream education. c) The Headmasters and the teachers of MCD schools should hold a monthly meeting of the parents to sensitize/counsel them about importance of education. Experts/communities leaders should be invited to such meetings. d) MCD will also sensitize/counsel the slum-dwellers in general about the importance of education for their children and the facilities available for the same, as well as about the long-term evil impact of child labour through programmes such as meetings, prabhat pheries, documentary films, etc. in the colonies. e) The MCD should ensure that all its schools have an adequate number of teachers in proportion to children in each class (subject specific, wherever applicable) and that teachers are regular and punctual. It should also introduce a system of incentives/rewards for schools which maintain higher enrolment/retention of out-of-school children and prevent dropouts as well as a system of disincentives for those who consistently fail to identify, enroll and retain out-of-school children. f) The Education Department of MCD will obtain the list of children who are not attending school and will instruct the Principal of the concerned school(s) to bring such children back to school. g) The concerned Zonal Dy. Education Officer (DEO) will send a monthly report to the Dy. Commissioner of the District with a copy to the Labour Commissioner and the Education Department of MCD about the school-wise and class-wise attendance and dropouts corresponding to the number of children admitted. The report should also include details of the efforts made for sensitization/educational counseling of the children and their parents. These reports should be examined in the next meeting of the district level Task Force and the State level Steering Committee, as well as in the Education Department of MCD for remedial measures. h) The Zonal Deputy Education Officer (DEO) as the Nodal Officer on behalf of MCD will be responsible for various matters relating to the pre-rescue planning, rescue and post- rescue rehabilitation/education in the concerned MCD area(s).

89 7.7.7. Deputy Commissioner of the district concerned a) Ensure that there is no incidence of child labour in any form within his/her jurisdiction. b) Call a meeting of the District level Task Force on Child Labour on monthly basis and to preside over the same. c) Forward a copy of the monthly meetings of the District level Task Force on Child Labour. A detailed report of the review meeting should be sent to the Government of NCT of Delhi through the Labour Commissioner. d) Prepare a list of all voluntary organizations dealing with the problem of child labour with their areas of expertise and to ensure that this list is updated on a regular basis. Public awareness drives should be arranged along with these organizations. Public opinion should be created to stress that education is the right of every child and is the first step towards progress. e) Get constantly updated about the raids, rescue and rehabilitation of hild labourers in the district and extend all necessary support to the rescue team. f) Ensure that all necessary actions are taken within his competence under the Bonded Labour System (Abolition) Act and Rules, 1976 as well as under the 'Centrally Sponsored Plan Scheme For Rehabilitation of Bonded Labour', if the facts and circumstances in which child labourers are found lead to the presumption that they are forced labourers/bonded labourers. g) Ensure that a sum of Rs. 20,000/- per child labourer is recovered from his/her employer and credited along with a sum of Rs. 5,000/- to the District Child Labour Welfare Fund, as per the direction of the Hon'ble Supreme Court of India in the case of M.C. Mehta, 1996. h) Furnish a utilization certificate to the Government, through the Labour Commissioner, about the funds stated above, on a half-yearly basis, before 30 September and 31 March every year. i) Seek guidance (wherever necessary) from the Labour Commissioner with regard to the utilization of collected funds. As far as possible, the amount collected should be utilized for the rehabilitation of the child labourers for whom the amount is collected. j) As per the judgment of the Supreme Court cited above, an adult unemployed member of the child labourer's family should be provided employment there in his place and the child should be directed to receive education. k) In case the child has taken up the job due to economic condition of the family, adequate effort should be made to provide the family with all the benefits under all relevant developmental and social security schemes of the Government. l) The DC should recommend that the authorities of the concerned departments make remarks in the Annual Confidential Report (ACR) of the Task Force members so as to ensure accountability to the assigned task. 7.8 The roles and responsibilities of concerned departments/authorities of Government of NCT of Delhi outlined above will be required for implementing both Strategy – I (Social Mobilization for Total Abolition of Child Labour) and Strategy –II (Pre-rescue, Actual rescue, Interim care, Enforcement of Laws, Repatriation and Rehabilitation of Child Labour).

90 91 Judgement *IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(C) 9767/2009 COURT ON ITS OWN MOTION .....Petitioner versus GOVT OF NCT OF DELHI .....Respondent Through: Mr.A.S. Chandhiok, ASG with Mr. Sanjay Katyal, Ms. Sweta Kakkad & Mr. Varun Pathak, Advs. for UOI. Ms. Mukta Gupta, Standing Counsel with Mr. Rajat Katyal, Adv. for State. Mr. Anil Shrivastav, Adv. for NCPCR. Ms. Asha Menon, Member Secretary, DLSA with Mr. Harish Dudani, OSD for DLSA. AND + W.P.(CRL) 2069/2005 SAVE THE CHILDHOOD FOUNDATION .....Petitioner Through: Mr. H.S. Phoolka, Sr. Adv. with Ms. Sunita Tiwari & Mr. Bhuwan Ribhu, Advocates. versus UNION OF INDIA & ORS...... Respondents Through: Mr.A.S. Chandhiok, ASG with Mr. Sanjay Katyal, Ms. Sweta Kakkad & Mr. Varun Pathak, Advs. for UOI. Ms. Mukta Gupta, Standing Counsel with Mr. Rajat Katyal, Adv. for State. Mr. Anil Shrivastav, Adv. for NCPCR. Ms. Asha Menon, Member Secretary, DLSA with Mr. Harish Dudani, OSD for DLSA. AND + W.P.(C) 15090/2006 Q.I.C. & A.C...... Petitioner Through: None. versus MINISTRY OF LABOUR & EMPLOYMENT & ANR .....Respondents

92 Through: Ms. Zubeda Begum, Adv. for GNCTD. and Labour Department. Mr. Anil Shrivastav, Adv. for NCPCR. Ms. Asha Menon, Member Secretary, DLSA with Mr. Harish Dudani, OSD for DLSA. AND + W.P.(C) 4125/2007 ALL INDIA BHRASHTACHAR VIRODHI MORCHA (REGD.) .....Petitioner Through: Mr. Tiger Singh, Adv. with Ms. Jasbir Singh & Mr. Manmeet Singh, Advs. versus KAROL BAGH BANGIYA SWARAN SHILPI SAMITI (REGD.) & ORS...... Respondents Through: Mr. Mayank Nagi, Adv. for R-1. Ms. Deepak Tiwari, Adv. for Ms. Sujata Kashyap, Adv. for GNCT. Mr. Sanjeev Sabharwal, Adv. with Mr. Hem Kumar, Adv. for MCD. Ms. Pinky Anand, Adv. with Ms. Aakanksha Munjhal, Adv. for R-7. Mr. Anil Shrivastav, Adv. for NCPCR. Ms. Asha Menon, Member Secretary, DLSA with Mr. Harish Dudani, OSD for DLSA. AND + W.P.(C) 4161/2008 COURT ON ITS OWN MOTION .....Petitioner versus STATE NCT OF DELHI .....Respondents Through: Ms. Zubeda Begum, Adv. for GNCT. Mr. Anil Shrivastav, Adv. for NCPCR. Ms. Asha Menon, Member Secretary, DLSA with Mr. Harish Dudani, OSD for DLSA. Reserved on : July 09, 2009 Date of Decision: July 15, 2009 CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE MANMOHAN 1. Whether Reporters of local papers may be allowed to see the judgment? Yes. 2. To be referred to the Reporter or not? Yes. 3. Whether the judgment should be reported in the digest? Yes.

93 JUDGMENT MANMOHAN, J: 1. Today's children constitute tomorrow's future. To ensure a bright future of our children, we have to ensure that they are educated and not exploited. 2. In fact, children are the most vulnerable members of any society. They are entitled to special care and assistance because of their physical and mental immaturity. The problem is more complicated in developing countries like ours, where child labour exists in relationship with illiteracy and poverty. 3. To eliminate the menace of child labour and to effectuate the mandate of Articles 23, 24, 39, 45 and 47 of the Constitution, Supreme Court had given a large number of mandatory directions in “M.C. Mehta v. State of Tamil Nadu reported in AIR 1997 SC 699”. One of the important directions was to direct an employer to pay a compensation of Rs.20,000/- for having employed a child below the age of 14 years in hazardous work in contravention of Child Labour (Prohibition & Regulation) Act, 1986 (hereinafter referred to as „CLPRA, 1986?). The appropriate Government was also directed to contribute a grant/deposit of Rs.5,000/- for each such child employed in a hazardous job. The said sum of Rs.25,000/- was to be deposited in a fund to be known as Child Labour Rehabilitation-cum-Welfare Fund and the income from such corpus was to be used for rehabilitation of the rescued child. 4. As the constitutional mandate and statutory provisions with regard to children were not being vigorously implemented and there was lack of coordination between different agencies of the Government of NCT of Delhi and other authorities, this Court, vide a detailed order dated 24th September, 2008 directed the National Commission for Protection of Child Rights (hereinafter referred to as 'National Commission'), to formulate a detailed Action Plan for strict enforcement and implementation of CLPRA, 1986 and other related legislations. The National Commission was directed to suggest measures regarding education, health and financial support to the rescued children. The National Commission was also directed to suggest measures for timely recovery and proper utilization of funds collected under the Supreme Court?s direction in the aforesaid M.C. Mehta's case. 5. The National Commission after holding consultation with various stakeholders and after conducting research and survey submitted to this Court a Delhi Action Plan for Total Abolition of Child Labour. 6. According to the National Commission, the child labour profile in Delhi is of two types namely, out-of-school children living with their parents in Delhi and migrant children from other states who have left their family behind. 7. The Action Plan for Total Abolition of Child Labour is based on two strategies. The first strategy is an 'Area Based Approach' for elimination of child labour, wherein all children in the age group of 6 to 14 years would be covered whether they are in school or out-of-school. The National Commission has proposed that this approach be initiated as a Pilot Project in North-West District of Delhi. 8. The second strategy is an approach to be adopted in the context of migrant child labour. It involves a process of identification, rescue, repatriation and rehabilitation of child labour. This strategy is proposed to be implemented as a Pilot Project in South Delhi District. 9. It is pertinent to mention that both the strategies in essence implement CLPRA, 1986, Delhi Shops and Establishment Act, 1954, Juvenile Justice (Care and Protection of Children ) Act, 2000 and the Bonded Labour System (Abolition ) Act, 1976.

94 10. One of the objectives of the Area Based Approach is to mobilize and build consensus on the issue of total abolition of child labour through universalisation of elementary education. The plan attains to mobilize and build consensus by holding public meetings, rallies and by involving Municipal Councilors, RWAs? etc. 11. The Area Based Approach also aims to enroll all children in the age group of 6 to 14 years in schools and to withdraw them from work, while at the same time ensuring their retention in schools. This approach also seeks to integrate older children withdrawn from work in classes according to their age through programmes of various courses and accelerated learning. This objective is sought to be achieved by setting up Transitional Education Centres or Non- Residential Bridge Course Centres or Residential Bridge Course Camps as well as by holding Short Term Camps. This approach also aims to build local institutions for protection of Child Rights by forming Committees and Forums of Liberation of Child Labour (Youth and Teachers? Wings) as well as strengthening of Vidyalaya Kalyan Samitis and by implementing training and retention programmes on issues relating to Child Labour and Children Rights to Education along with tasks and roles of specific stakeholders. 12. The Strategy for Unaccompanied Migrant Child Labourers in Delhi is based on “Protocol on Prevention, Rescue, Repatriation and Rehabilitation of Trafficked and Migrant Child Labour” issued by Ministry of Labour and Employment, Government of India, 2008. According to the Action Plan, trafficked and migrant child labourers are primarily engaged in prohibited occupations such as zari, bulb manufacturing, auto workshop units and domestic household etc. 13. This strategy contemplates constitution of a Steering Committee on Child Labour at the State level and District Level Task Force on Child Labour at District Level. 14. The Delhi Action Plan provides for a detailed procedure to be adopted at the pre-rescue and actual rescue stage. The pre-rescue plan deals with as to how information is to be collected, verified and as to the composition of the rescue team as well as what training is to be imparted in advance to the members of the rescue team. The pre-rescue plan provides for prior preparation of residential centres through RBC, JJ Homes, NGO Shelter for accommodating the child labour proposed to be rescued. 15. The Delhi Action Plan provides a detailed procedure for interim care and protection of the rescued children. It provides for immediate medical examination of the children and as to how investigation is to be conducted and charge sheet is to be prepared. 16. The strategy for Unaccompanied Migrant Children also provides for assessment and verification of Child's background and intra state as well as inter state repatriation. 17. The Action Plan provides for detailed procedure for rehabilitation and social integration of the child labour as well as training and capacity building of duty bearers. 18. In a bid to ensure proper coordination amongst different agencies of the Government of NCT of Delhi, the Action Plan defines the role and responsibilities of various departments/authorities involved in the process in the following consolidated manner: 7.7. The Responsibilities of the Respective Departments 7.7.1. Delhi Police The concerned Deputy Commissioner of Police should: a. Make the necessary arrangements of police force for raids as per the demand and requirement of Action Force;

95 b. Personally participate in the raids conducted by the Action Force; c. Should take charge of the child labour liberated by the Action Force; d. Should take steps to arrest the owners/employers of the child labour as per provision of Indian Penal Code Sec. 331, 370, 374 and 34 as well as provisions of Sec. 23, 24, 26 of Child Justice (Care and Protection) Act. They should register the crime and take all the necessary future steps to conduct further criminal proceedings; e. Should treat the liberated child labour with respect and honour and hand them over to children's home in the charge of officers of Women and Child Welfare Department; f. Put forward the cases of child labour as per Section 32 with the help of Action Force in front of Child Welfare Committee. As per the decision of the Child Welfare Committee, the children should be handed over to their parents through JAPU if the children are from other states. 7.7.2. Department of Labour, GNCTD: a) To keep the areas in their jurisdiction where the child labour is likely to be hired under continuous active surveillance. b) In case the child labour is found to be employed and if their number is high, then immediate action should be taken within 24 hours after contacting the District Collector and police officers by carrying out a raid through Action Force. If the number of child labour is less, then immediate action should be taken to liberate them on the very day with the help of departmental colleagues and police. c) To keep track of the planning and conduct of every child labour rescue operation. It should be ensured that adequate number of officers and shop inspectors are present during the raid. There should be active participation in the liberation of child labour.Necessary action should be carried out against the employer of the child labourer as per the provisions of Section 3 of Child Labour (Prohibition and Regulation) Act, 1986; if this is applicable. If Section 3 of the Act is not applicable then action should be taken under provisions of Section 7, 8, 9, 11, 12 and 13. d) Even if the job carried out by the child worker does not fall under the dangerous job category, the child labourer should be liberated from the clutches of unscrupulous employers and handed over to the police with a view to eradicate the undesirable practice of child labour and bringing these children under the mainstream of education. e) To document all details of the liberated child worker by obtaining details from him in an affectionate manner and furnishing a copy to the police department. A complaint against the employer of the child labourer should be lodged (with the help of Task Force, if necessary) with the police and his statement should be recorded as a matter of formality and duty. f) While obtaining information from the child labourer, if it is found that the employer had paid any money as financial assistance, loan advance etc. to the parents, then immediate report should be made to the District Collector for declaring the child labourer as 'forced' labourer and a copy should be endorsed to the Government through the Commissioner. g) Due care of the liberated child labourers should be taken till they are sent to the Children's Home and it should be seen that they are provided with proper food, water and other facilities in time.

96 h) As per the definition specified in Section 2(K) of the Juvenile Justice (Care and Protection of Children) Act 2000, the individual who is below 18 years of age should be considered as a child. Therefore in the course of raid, if child workers above 14 years of age are found, then they should also be liberated from the clutches of the employer(s) and handed over to the police. i) A sum of Rs. 20,000/- (Rupees Twenty Thousand) should be recovered from the employer of child labourer subjected to legal action vide Section 3 of Child Labour (Prohibition & Regulation) Act 1986 as per the directives issued by the Hon'ble Supreme Court in the M.C. Mehta case, 1996 and credited to the District Chila Labour Welfare Fund of the District to which the child originally belongs. j) To designate nodal officers at senior level to be part of the District Level Child Labour Task Force (districtwise) and also for the rescue team. k) To strengthen the intelligence network through the Community Workers of the Labour Department on the status of out-of-school children, places of work involving children and their employers/contractors/middlemen, etc. l) Necessary legal action should also be taken against the employers of child labourers under the following legislations and corresponding Rules (wherever applicable): i. Delhi Shops and Establishment Act, 1954 ii. Minimum Wages Act, 1948 iii. Motor Transport Workers Act, 1961 iv. Factory Act, 1948 v. Interstate Migrant Workmen (Regulation of Employment and Condition of Services) Act, 1979. vi. Contract Labour (Regulation & Abolition) Act, 1970. 7.7.3. Women and Child Welfare Department,GNCTD a) Generation of awareness among masses against the practice of child labour. Steps should be taken for the rehabilitation of local child labourers with the help of Deputy Commissioner (DC) and voluntary organizations, if the child labourer happens to be from the local area. b) Take charge of child labourers liberated by the Action Force and see that they are provided adequate food, clothing and shelter. Due care should be taken about their safety. c) If the child worker happens to be a local person, she/he should be inducted in the mainstream of education with the help of education officer. If possible, he/she should be provided job oriented technical education. d) The Superintendent of the Children Home to which the liberated Child Labourers have been placed should arrange for the interaction/taking of statements by the concerned Child Welfare Committee. e) Information about instructions of the Child Welfare Committee should be independently submitted to the DC and Labour Commissioner every month. f) DWCD, GNCTD should designate nodal officers at senior level who can be part of the District Child Labour Task Force for every district.

97 g) Issue letters to the respective CWCs to nominate a member who can be part of the District Child Labour Task Force. Such member of the CWC can be a link between the CWC and District Child Labour Task Force for all practical purposes, including, attending the pre- rescue planning meeting of the Task Force, issuing Orders for the interim care and custody of the rescued child reports (SIR), verification/identification of their families and their ultimate repatriations/followup. The CWC Member will get the inquiry done and Social Investigation Report prepared under JJ Act in a child friendly manner at the camp/home/hostel/RBC where the children have been lodged. h) To keep the Homes ready for the reception and suitable accommodation of the rescued child labours. 7.7.4. Education Department,GNCTD a) In order to absorb the liberated child labourer into mainstream of education without any discrimination, (sex/caste etc.) they should be offered free and compulsory education and should be compelled to receive it. b) Various schemes sponsored by the Central and State Governments should be implemented for this purpose. c) During their educational period, they should get the benefit of free meals scheme of the State Government. d) The Department will set up initially 250 Alternative Innovate Education Centres (AIEC)/NRBCs in the areas of child labour concentration and/or in the areas having large number of out-of-school children. The Department would also ensure that all the children at NRBCs/RBCs are given free mid day meal (as assured by the Department, vide UEE Mission letter no. 39, dated 11.4.2009). e) Care should be taken to see that the child labourer develops liking for the education. f) The education officer and Principal of the school should be held responsible for the dropouts among the child labourers receiving education. g) Parents of child labourer should be counseled to stress the importance of education among the labourers. h) Monitoring of academically weaker children in schools will be done with the involvement of CRC and NGOs for (as assured by the Department, vide UEE Mission letter no. 39, dated 11.4.2009) preventing dropouts. i) The concerned District Urban Resource Centre Coordinator (DURCC) will send a monthly report to the Dy. Commissioner of the District with a copy of the same to the SPD (SSA) and Director (Education), GNCTD about the following: i. School wise and class wise attendance and drop-outs corresponding to the number of children enrolled; ii. Number of out-of-school children in the district (school wise and class wise) along with the list; iii. The efforts made for awareness/sensitization/educational counseling of children and their parents. Such reports should be examined in the following meeting of the district level Task Force and of the state level Steering Committee as well as at the highest level in the Education Department of GNCTD for remedial measures.

98 j) Department will ensure that all its schools have adequate number of teachers in proportion to children in each class (subject specific, wherever applicable) and they are maintaining punctuality. It should also introduce a system of incentive/reward for its schools which maintains higher enrolment/retention of out-of-school children and prevent dropouts as well as a system of disincentives for those who consistently fail to identify, enroll and retain the out-of-school children. 7.7.5. Health Department,GNCTD a) After receiving information about the raid of Action Force through Labour Officer/Police Officer, complete medical examination of liberated child labourers should be carried out. b) Immediate medical treatment should be initiated, if required. c) Clear cerficiate of age (issued by medical officers not below the rank of Government Assistant Surgeon) of the liberated child labouer should be furnished immediately to the investigating police officer or Government labour officer as per their demand. d) Expenses incurred towards the treatment and issuance of medical certificate should be met by the DC from the District Child Welfare Fund and should be recovered from the employer of the child labourer and reimbursed to the District Child Welfare Fund after recovery. 7.7.6. Municipal Corporation of Delhi (MCD) a) Under its Slum Development Programme, the MCD should enhance the standard of living of all children living in the slums within its jurisdiction and particularly ensuring effective access to free health check up and medical care, quality education, recreation, vocational training and community life. b) MCD Schools should provide free and compulsory education to all rescued child labourers belong to Delhi irrespective of their age (by arranging accelerated learning for the older children through NRBCs wherever necessary for mainstreaming them to age appropriate classes) without any discrimination (sex/caste etc.). They should be mentoring the non- formal education programmes run by NGOs in various slums with a view to bringing all out-of-school children in the area into the fold of mainstream education. c) The Headmasters and the teachers of the MCD schools will hold a monthly meeting of the parents for sensitizing/counselling them about importance of the education. Experts/communities leaders would be invited to such meetings. d) MCD will also have sensitization/counselling programmes for the slum-dwellers in general about the importance of education for their children and the facilities available for the same as well as the long-term evil impacts of child labour through meetings, prabhat feries, documentary films, etc. in the colonies. e) The MCD should ensure that all its schools have adequate number of teachers in proportion to children in each class (subject specific, wherever applicable) and such teachers are maintaining punctuality. It should also introduce a system of incentive/reward for its schools which maintains higher enrolment/retention of out-of- school children and prevent dropouts as well as a system of disincentives for those who consistently fail to identify, enroll and retain the out-ofschool children. f) The Education Department of MCD will obtain the list of children who are not attending schools and will instruct the Principal of the concerned school(s) to bring such children back to school.

99 g) The concerned Zonal Dy. Education officer (DEO) will send a monthly report to the Dy. Commissioner of the District with a copy of the same to the Labour Commissioner and the Education Department of MCD about the school wise and class wise attendance and drop- outs corresponding to the number of children admitted. The report should also include the efforts made for sensitization/educational counseling of children and their parents. Such reports should be examined in the following meeting of the district level Task Force and of the state level Steering Committee as well as in the Education Department of MCD for remedial measures. h) The Zonal Deputy Education Officer (DEO) will be responsible as the Nodal Officer on behalf of MCD on various matters relating to the pre-rescue planning, rescue and post- rescue rehabilitation/education in the concerned MCD area(s). 7.7.7. Deputy Commissioner of the District concerned a) To ensure that no incidence of child labour in any form is found within his/her jurisdiction. b) To get the meeting of the District level Task Force on Child Labour on monthly basis and to preside over the same. c) To forward a copy of the monthly meetings of the District level Task Force on Child Labour, detailed report of the review meeting should be sent to the Government of NCT of Delhi through Labour Commissioner. d) To get a list of all voluntary organizations dealing with the problems of child labour prepared with areas of their expertise and to ensure that such list is updated on regular basis. Along with these organizations, public awareness drives should be arranged. Public opinion should be generated to stress that education is the right of every child and is a first step towards progress. e) To get constantly updated about the raids, rescues and rehabilitations of child labourers in the district and to extend all necessary support to the rescue team. f) To ensure that all necessary actions are taken within his competence under the Bonded Labour System (Abolition) Act and Rules, 1976 as well as under the 'Centrally Sponsored Plan Scheme for Rehabilitation of Bonded Labour', if the facts and circumstances in which child labourers are found lead to the presumption that they are forced labourers/bonded labourers. g) To also ensure that Rs.20,000/- per child labourer is recovered from his/her employer and credited along with Rs.5000/- to the District Child Labour Welfare Fund, as per the direction of the Hon'ble Supreme Court of India in the case of M.C.Mehta, 1996. h) To furnish a utilization certificate to the Government through the Labour Commissioner about the funds stated above on half yearly basis, before 30 September and 31 March every year. i) Guidance may be sought (wherever necessary) from the Labour Commissioner with regard to the utilization of collected funds. As far as possible, the amount collected should be utilized for the rehabilitation of the child labourers for whom the amount is collected. j) As per the judgment of the Supreme Court cited above, adult unemployed member of the family of the child labourer should be provided employment there in his place and the child should be directed to receive education. k) In case the child has taken up the job due to economic condition of the family, adequate

100 efforts should be made to provide all benefits to the family under all relevant developmental and social security schemes of the Government. 7.8. The above roles and responsibilities of concerned departments /authorities of Government of NCT of Delhi will be required for implementing both Strategy – I (Social Mobilization for Total Abolition of Child Labour) and Strategy - II (Pre-rescue, Actual-rescue, Interim care, Enforcement of Laws, Repatriation and Rehabilitation of Child Labour).” 19. Subsequent to the filing of the aforesaid Action Plan, the Labour Department of Government of NCT of Delhi has raised some issues. According to the Labour Department, CLPRA, 1986 prohibits employment of children only in certain scheduled occupations and processes. Consequently, according to the Labour Department, child workers employed in non-hazardous jobs cannot be rescued. The Labour Department has further urged that in the Action Plan it has been stipulated that all children between the age of 14 to 18 years have to be liberated and handed over to the police, even though CLPRA, 1986, defines child as a person who has not completed 14 years of age. 20. On a perusal of CLPRA, 1986, we are of the view that under the said Act, only child workers employed in scheduled occupation and processes can be liberated and children employed above the age of 14 years cannot be rescued. 21. However, in our view, the Juvenile Justice (Care and Protection of Children) Act, 2000, would apply to children between the age of 14 and 18 years as well as to those children employed below the age of 14 years in nonscheduled occupation and processes. Consequently, the said children would be governed by the Juvenile Justice (Care and Protection of Children) Act, 2000 as well as Bonded Labour System (Abolition ) Act, 1976, if applicable and not by CLPRA, 1986, as stipulated in the Delhi Action Plan prepared by the National Commission. 22. Moreover, at the request of Labour Department, we direct that the responsibility of lodging a police complaint against an employer employing child labour would lie with the Delhi Police and not the Labour Department as directed in the Delhi Action Plan. We further clarify that the authority to take action under the Bonded Labour System Abolition Act, 1976, would be the Deputy Commissioner of District concerned and not the Labour Department. Accordingly, paras (e) and (f) of para 7.7.2 of the Delhi Action Plan are amended. 23. It is further clarified that the recovery of fine of Rs. 20,000/- as stipulated by the Supreme Court in M.C. Mehta?s case will not have to await a conviction order of the offending employer. The said amount would be recovered as arrears of land revenue and the said amount would be utilized for the educational needs of the rescued child even if the child has subsequently crossed the age of 14 years. 24. The Deputy Director, Child Welfare, has also filed a Status Report stating that considering the capacity and existing strength of NGOs? and Government run institutions in Delhi, the department would be able to accommodate only about 500 additional children every month, since the restoration efforts take about 30 to 40 days? time. The said Status Report, however, states that all efforts would be made to motivate NGOs to enhance their capacity to accommodate more children and to register more Children Homes. 25. Keeping in view the aforesaid infrastructural limitation, we direct the labour department to begin implementing the Delhi Action Plan by accommodating for the time being about 500 children every month.

101 26. Moreover, being cognizant of the fact that ground level reality may be different from the one projected in the Action Plan, we grant liberty to the above-mentioned authorities to seek clarification or amendment of the Action Plan from this Court. 27. To conclude, we would only quote what Dr. Dorothy I. Height, a social activist, has said, “we have got to work to save our children and do it with full respect for the fact that if we do not, no one else is going to do it.” 28. Consequently, we accept the Delhi Action Plan which provides a detailed procedure for interim care and protection of the rescued children to be followed by Labour Department as prepared by the National Commission with the modifications mentioned hereinabove in paras 20 to 26 and we further direct all the authorities concerned to immediately implement the same. The Government of NCT of Delhi through the Labour Department is directed to file its First Taken Report to this Court after six months. For this purpose, list the present batch of matters on 13th January, 2010.

MANMOHAN (JUDGE) CHIEF JUSTICE JULY 15, 2009

102 Protocol on Prevention, Rescue, Repatriation and Rehabilitation of Trafficked & Migrant Child Labour 2008

The protocol provides practical guidelines to key stakeholders on crucial issues relating to prevention, rescue, repatriation and rehabilitation of trafficked and migrant child labour.

Ministry of Labour & Employment Government of India Introduction There is an increasing trend of migration and trafficking of children for labour in different parts of the country. Compelled by the socio-economic conditions, a large number of children are migrating from economically backward areas to big cities for work. In many of these cases, these children are being trafficked by middle men and agents who are bringing them to the employers in the city by extending meagre advances to the parents and giving false assurances of lucrative jobs etc. These children work under highly exploitative situations like very long working hours, paltry wages, unhygienic and most difficult working conditions. Such children mostly work in industries like zari making, jewellery units, domestic help, dhabas, tea stalls, etc. Very often, they are kept within the confines of the work places and therefore, lack any kind of freedom and are vulnerable to abuse. Various State Governments have been conducting raids to rescue such children from the clutches of these unscrupulous employers. On being rescued, they are, in most cases, repatriated to their native places. Till their repatriation, they are kept in temporary shelters. These shelter homes lack in basic facilities like clean toilet, sleeping place, clothes, health care facilities, food etc. Lack of sensitization of the staff there and lack of proper security arrangements are the other negative factors in shelter homes. In addition, they also face a number of other problems relating to their transit to their native places, including the delay in presentation before Child Welfare Committees (CWCs), delay in payment of compensation, legal delays etc. Once they are sent back to their native places, there is lack of proper rehabilitation measures there. Under the circumstances and in the absence of monitoring, many of these children sooner or later get retrafficked for labour. There are a number of factors that make children more vulnerable to trafficking for labour. Some of these are at the family level and some others at the community or society level. While at the family level, the major push factors are poverty, illiteracy, dysfunctional family life, under-employment and a lack of income-generating opportunities for families, those at the community or society level are a general apathy or tolerance towards exploitative forms of child labour, degeneration of moral values, increasing commercialization, lack of community support, social vulnerabilities and weak law enforcement. Considering the complexity of the problem, a comprehensive multi-pronged approach to this problem is required. This would cover not only the educational rehabilitation of these children to prevent them from entering and re-entering such exploitative labour situations but also various socio-economic causal factors such as poverty, illiteracy, lack of awareness etc. The measures could include economically empowering the families by covering them under various schemes of the Government, community mobilization and attitudinal changes through awareness generation, creation of suitable rehabilitation infrastructure, backed by unambiguous legislative provisions against offenders and stronger enforcement. Some of the crucial areas requiring attention are as follows: Better coordination among key players – Trafficking of children for labour touches on many other concomitant issues like child bonded labour or servitude, labour as well as sexual exploitation, infringement of human rights etc. There is a need for better coordination of the activities among various government departments looking into these areas including the police, labour department officials, judiciary, NGOs etc. Strict enforcement – Lack of complete awareness, sometimes apathy on the part of enforcement officials and long time taken in settlement of cases of prosecution can lead to the weak enforcement of the laws. To make a dent into this problem, there is a need for consistent enforcement of various laws relating to trafficking of children for labour and regular monitoring of enforcement by the State

104 government. To ensure strict enforcement there is a need for the enforcement officers, prosecutors and judicial officers to be adequately sensitized about the provisions of the laws dealing with child trafficking. Long drawn repatriation process – There are number of time consuming procedures involved in the repatriation of the rescued children to their native place and at times, it takes many days/weeks of waiting in the Shelter Homes. This involves delay in production of rescued children before CWCs, delay in police investigation, filing of a charge sheet, filing of complaint in the court, and judicial proceedings etc. These children are in the meanwhile kept in the Shelter Homes where the arrangement in many cases is inadequate. Locating their home addresses and establishing contact with the local administrations for their rehabilitation also takes time. This adds up to the miseries of these children and at times, they also run away from these Shelter Homes. Cross Border Trafficking There are instances of migration or trafficking of children for labour from neighbouring countries like Nepal and Bangladesh. These children are being brought to big cities in India in search of labour and they end up working in most difficult conditions, mostly in dhabas, tea stalls or as domestic servants. So far away from their families, these children are highly vulnerable to all kinds of abuses, including physical and sexual abuse. Issues related to repatriation and rehabilitation of children who are victims of cross border trafficking becomes even more complex and difficult as it involves coordination with other countries from where these children are coming. There has to be a mechanism for smooth repatriation of such children so that these children do not suffer in the process and they are safety sent back home. Need for a Protocol There is no specific protocol that deals with various issues involved in prevention, rescue, repatriation and rehabilitation of trafficked and migrant child labour. There are a number of Government Departments and other stakeholders which have an important role to play in the rescue, repatriation and rehabilitation of these children. During raids as well as post-raid operations, there are no clearly laid out mechanisms and supporting instructions, which could be relied upon by various stakeholders for taking all the necessary steps. Inter departmental linkages therefore have to be formalized and mechanisms for coordination clearly laid out. Hence, this protocol has been developed as a set of guidelines for smooth rescue, repatriation and rehabilitation of these children. Considering the seriousness of the problem, the judiciary has also taken up the issues of rehabilitation of such children. In a recent case relating to trafficking of children for labour, the Hon’ble High Court of Delhi has directed that the Union Labour Secretary may form a Committee consisting of the concerned Labour Secretaries to look into the issue of rehabilitation of migrant children rescued in Delhi and develop an appropriate Scheme for this purpose. The Committee has already been formed under the Union Labour & Employment Secretary and this draft protocol has taken into account the decisions taken by the Committee. Constitutional Provisions & International Conventions The Constitution of India places a primary responsibility on the State to ensure that all needs of Children are met and their human rights are fully protected. The specific provisions under the Constitution relating to protection of children from economic exploitation and their education are given below: Article 21: A Right to Education The State shall provide free and compulsory education to all children of the age of 6 to 14 years in such manner as the State, by law, may determine.

105 Article 23: Prohibition of traffic in human beings and forced labour (1) Traffic in human beings and begar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law. (2) Nothing in this article shall prevent the State from imposing compulsory service for public purpose, and in imposing such service the State shall not made any discrimination on grounds only of religion, race, caste or class or any of them. Article 24: Prohibition of employment of children in factories, etc. No child below the age of fourteen years shall be employed in work in any factory or mine or engaged in any other hazardous employment. Article 39: The State shall, in particular, direct its policy towards securing that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength. International Conventions UN Convention on the Rights of the Child (1989) The UN Convention on the Rights of the Child (CRC) has prescribed a set of standards to be adhered to by all State Parties in protecting the child and securing the best interest of the Child. It deals directly with protection of children especially girl children. Under this Convention, the States are to take all appropriate measures to prevent trafficking in children and also protect them from all forms of exploitation and abuse. The Government of India acceded to the UN Convention on the Rights of the Child in 1992 with a declaration that considering the existing socio-economic conditions, it was not possible to agree to the provisions of Article 32 of the Convention relating to the Minimum age for employment. UN Protocol to Prevent, Suppress and Punish Trafficking in Persons (2000) As per the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons especially women and children, 2000 supplementing the UN Convention against Transnational Organized Crimes, definition of trafficking includes situations of forced labour, servitude and slavery. It defines”Trafficking in persons as the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the 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. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs”. In case of children, however the recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered ‘trafficking in persons’ even if this does not involve any of the means mentioned above. The Government of India has signed the protocol, but not yet ratified it. This implies that India has expressed its intent to consider criminalizing trafficking in domestic legislation, but not yet given specific commitment through an instrument of ratification. The General principles of the UN Protocol, viz., Protection of rights of the child, Best interest of the child, Protection of the child, Equality and non discrimination, Avoidance of harm, Non

106 criminalization of the child, Respect for views of the child, Right to confidentiality, Right to information shall be broadly followed in the rescue, repatriation and rehabilitation of migrant and trafficked child labour. National Legal Framework Some of the provisions of the laws that can be invoked for most common situations of trafficking of children for labour as seen in the country are listed below: Child Labour (Prohibition and Regulation) Act, 1986 • Prohibits employment of children below 14 years in certain hazardous processes and regulates it in other non-hazardous processes (Section 3) At present, 15 occupations and 57 processes are prohibited under the Act for employment of children. • Further, the Act regulates the condition of employment of children in other occupations and processes that are not prohibited. Indian Penal Code, 1860 • Kidnapping or maiming a minor for purpose of begging (Section 363A) • Kidnapping or abduction to subject a person to slavery (Section 367) • Buying or disposing off any person as a slave (Section 370); • Habitual dealing in slaves (Section 371); • Unlawful compulsory labour (Section 374). The Juvenile Justice (Care and Protection of Children) Act (JJA), 2000 • Procurement of a child for the purpose of any hazardous employment, keeping such child in bondage and withholding the child’s earnings for one’s own use (Section 26) The Bonded Labour System (Abolition) Act, 1976 • Enforcement of bonded labour (Section 16) • Advancement of bonded debt (Section 17) • Extracting bonded labour under the bonded labour system (Section 18) The Schedule Castes and the Schedule Tribes (Prevention of Atrocities) Act, 1989 • Compelling or enticing a member of SC or a ST to do ‘begaar’ or similar form of forced labour or bonded labour other than any compulsory service for public purposes imposed by Government (Section 3(1) (vi) Children (Pledging of Labour) Act, 1933 • Declares any agreement by a parent or guardian to pledge the labour of a child below 15 years of age for payment or benefit other than reasonable wages, to be illegal and void. It also provides punishment for such parent or guardian as well as those who employ a child whose labour is pledged Other Key Labour legislations Some of the other labour laws such as, the Shops and Establishment Acts of various States, the Factories Act, 1948, the Plantation Labour Act, 1951, the Mines Act, 1952; the Merchant Shipping

107 Act, 1958; the Apprentices Act, 1961; and the Motor Transport Workers Act, 1961 can also be used to take action against the offenders. Government Policy & Programmes The National Policy on Child Labour enunciated in 1987 lays down following action plan for tackling the problem of child labour. • A legislative action plan • Focusing and convergence of general development programmes for benefiting children wherever possible, and • Project-based action plan of action for launching of projects for the welfare of working children in areas of high concentration of child labour. Based on the above, Government had initiated the National Child Labour Project (NCLP) Scheme in 1988 to rehabilitate working children in 13 child labour endemic districts of the country. Its coverage has been increased progressively since then to 250 districts in the country in the 10th plan. The Government plans to cover all the districts of the country in which there is an incidence of child labour during the 11th Plan. Giving due consideration to the specific needs of the migrant child labour, one of the proposals given for the 11th Plan includes a provision of residential schools in the metropolises and other big cities. Under the NCLP Scheme, children are withdrawn from work and put into special schools, where they are provided with bridging education, vocational training, mid-day meals, a stipend of Rs. 100 per month, health-care facilities etc. Under the Scheme, funds are given to the District Collectors for running special schools for child labour. Most of these schools are run by NGOs in the district. Linking the child labour elimination efforts with the Scheme of Sarva Shiksha Abhiyan (SSA) of the Ministry of Human Resource Development, efforts are made to ensure that children in the age group of 5-8 years get directly admitted to regular schools and that the older working children are mainstreamed to the formal education system through special schools functioning under the NCLP Scheme. At present, there are 8,887 NCLP schools being run in the country with an enrolment of 3.4 lakhs children and 4.5 lakhs working children have already been mainstreamed to regular education under the NCLP Scheme. Since poverty and illiteracy are the root causes for child labour, Government is taking steps to supplement Educational Rehabilitation of these children with economic rehabilitation of their families so that they are not compelled by their economic circumstances to send their children to work. Efforts are being made for convergence between the schemes of different Ministries like Ministries of Human Resource Development, Women & Child Development, Urban Housing & Rural Poverty Alleviation, Rural Development, Panchayati Raj etc., so that child labour and their families get covered under the diverse schemes of these Ministries also. A Core Group under the Chairpersonship of Union Labour Secretary comprising all these Ministries was formed for this purpose in September, 2006 to take measures for effective convergence of various developmental Schemes of the Government for education rehabilitation of child labour & economic empowerment of their families. In addition, the Government is also implementing some other international projects for child labour elimination in association with ILO. An important project among these is the INDUS Project launched in 2003 and jointly funded by the Government of India and the US. It is being implemented in 21 districts of 5 States of Delhi, M.P., Maharashtra, T.N. and U.P. The project aims to rehabilitate 80,000

108 child workers in these identified districts. This Project has some additional features, such as vocational training programme for adolescents, convergence with Education Department etc. This project has been extended till March, 2008. In addition, the Ministry is also implementing some other smaller international child labour projects, one in Karnataka State, funded by Government of Italy and another in Andhra Pradesh State, funded by DFID. The Government is also laying lot of stress on the enforcement of the Child Labour (Prohibition & Regulation) Act. State Governments are the appropriate authority for implementation of the Act for areas under their jurisdiction and the Chief Labour Commissioner (Central) for areas under the Central sphere. Strong enforcement measures act as deterrents and also lead to voluntary action on the part of the employers not to employ child labour in their respective units. The Government took a major step last year in the direction of elimination of child labour by banning the employment of children below the age of 14 years in two occupations viz., children working as domestic workers (CDL) and in teashops, hotels, road side eateries, etc. For the effective enforcement of the ban and the rehabilitation of the affected children, The Government has been coordinating with the State Governments for taking appropriate measures in this direction. Extensive awareness generation campaign against child labour is being launched from time to time in the print and electronic media. Recently, beginning from 14th November, 2007 the Government had launched a fortnight long nation wide special enforcement drive against child labour. Key Concepts This Protocol shall apply to any migrant or trafficked child labour in the country, irrespective of the child’s home State or country of origin, without any discrimination on the grounds of gender, caste, language, ethnicity, religion or origin. Child: For the purposes of this Protocol, a child shall mean any person who has not completed the fourteenth year of age, pursuant to Section 2 (k) of the Child Labour (Prohibition & Regulation) Act. The term ‘children’ shall be construed accordingly. The definition of child has to be in consonance with that given under the Child Labour (Prohibition & Regulation) Act, 1986. Child Labour: Pursuant to the definition of child under the Child Labour (Prohibition & Regulation) Act, the child labour will include children below 14 years of age engaged in hazardous occupations and processes as detailed by the Act. Migrant child labour: Migrant child labour may be broadly taken to be a child who has moved with or without the family across State borders or even within the same State and is engaged in hazardous work as specified under the Child Labour (Prohibition & Regulation) Act. Trafficked child labour: In comparison, a trafficked child labour may be taken as a child who has been recruited, transported, transferred, harboured or received for the purpose of labour exploitation through forced labour or forced services, bonded labour, slavery, practices similar to slavery, or servitude. A child has been trafficked if he or she has been moved within a country, or across borders, whether by force or not, with the purpose of exploiting the child. Prevention: It would mean various activities to be taken up to prevent migration and trafficking of children into exploitative labour. It would include stepping up enforcement drives against offenders employing children in prohibited hazardous work to act as a detriment, increasing community level awareness of the problem, providing alternative income generating or educational opportunities to children at risk. It would also include raising general awareness among public against child labour.

109 Monitoring and reporting of movement of children under suspicious circumstances will also have to be strengthened. Rescue operations: It would involve all activities associated with organizing inspections and raids, for identification, establishment, and withdrawal of child labour engaged in prohibited work as specified under the Child Labour (P&R) Act, with the aim of securing the rehabilitation and social reintegration of the rescued child. The term rescue operation shall include both the rescue of an individual child or of several children. Interim protection: All processes to be adopted pursuant to the rescue operation and until the repatriation of the child has been secured shall be termed as interim protection. In case repatriation is not possible, then it would also include measures to secure the rehabilitation and social reintegration of child within the State they are rescued from with a view towards ensuring the safety and well being of the child, in accordance with the Juvenile Justice Act, 2000 or any other Act or Rules in operation in the State supporting the process of interim protection Prosecution: Legal proceedings against the offenders under Child Labour (P&R) Act or any other labour or criminal laws applicable. Repatriation: It would involve all actions taken after the rescue of the children till their effective restoration with their families or legal guardians or others, in line with the proceedings outlined under the Juvenile Justice Act and the Rules laid down in this regard. Repatriation shall include intra state repatriation, if the child belongs to the State of rescue and inter state repatriation, if the child is from any other State in the country and repatriation shall be cross border if the child is from any other country. Rehabilitation and Social Reintegration: The term ‘rehabilitation and social reintegration’ shall include the processes included in Chapter IV of the Juvenile Justice (Care and Protection of Children), 2000 Act. The term ‘rehabilitation’ shall include the economic rehabilitation of the family and educational rehabilitation of the child. All terms and expressions used in this document, but not defined, unless the context requires otherwise and defined in the Child Labour (Regulation and Prohibition) Act, 1986 and Juvenile Justice (Care and Protection of Children) Act, 2000 shall have the meanings respectively assigned to them in those Acts. Pre-Rescue and Rescue operations Broadly, the rescue related activities can be divided into two sub stages: pre rescue operations and operations during the actual rescue. Pre–Rescue operations Pre-rescue operations include all steps taken to facilitate effective rescue operation. Some of the key steps are given below: Source of information: Information from primary source, such as a child labour or relative of a child labour or anyone else on behalf of the child, may be the basis for planning a rescue operation. Information about child labour is also available from secondary sources, such as surveys conducted under Sarva Shiksha Abhiyan, surveys conducted by the Department of Labour or community micro- planning. Data available with NGOs, Childline Service could also be used as the basis for identifying

110 ‘hotspots’ or clusters of child labour for planning rescue operations. The onus for sharing the information with other responsible authority will rest with the responsible authority receiving1 information from the informant, and not with the informant. The responsible authorities are empowered to conduct rescue operation or get it conducted on its behalf. However, the District Labour Department must always be involved in the rescue operations of the child labour. In case rescue is conducted by Labour Department officials alone during normal course of inspection or on specific complaint, the responsibility of lodging an FIR, wherever required will be of the concerned labour department official under the appropriate criminal law. Wherever possible, voluntary assistance of social organizations or NGOs or other responsible citizens shall be sought in the rescue as well as in the post rescue operations to take care of the children rescued. Verification of the information: (1) In case of a rescue operation, as soon as the responsible authority is informed of the likelihood of any act of child labour, if required and only in exceptional circumstances where it is necessary to verify the information in the best interest of the child, the responsible authority shall at the earliest, but in any event not beyond 72 hours make a prima facie determination of whether the information provided is true or not. After verification, the responsible authority shall start making arrangements to ensure logistical, financial and other arrangements, which would be necessary in the rescue operation as well as post rescue operations. The informant, NGOs or any other party interested in facilitating the rescue of the child may help the responsible authority, by providing such information, which may help in the verification of the information provided. (2) The responsible authority shall simultaneously inform all the relevant Government Departments, including but not limited to the Department of Women & Child Development and Child Welfare Committee, Municipal Corporation, Home Department, with the view towards ensuring that adequate preparations are undertaken to facilitate the interim care and protection and for taking care of logistical and other requirements subsequent to the rescue operations. Preparation of a plan of action towards undertaking the rescue operation: (1) In case of a rescue operation, a plan of action shall be prepared towards facilitating the safe rescue of the children and towards ensuring that the rescue operation itself does not inflict additional trauma on the children to be rescued. (2) The rescue team to be involved in the actual planning shall be kept to the minimum with a view to have secrecy and confidentiality of the rescue operation. Care should be taken that as far as possible the proceedings are kept confidential. (3) The rescue team can consider preparation of a map of the rescue area on the basis of the information provided, which marks out where child labourers are likely to be found as well as identifying spots which maybe potentially dangerous for the child, with the assistance of NGOs and other concerned officials, as may be feasible. Creation of the Rescue Team: (1) While carrying out a rescue operation, a rescue team2 shall be constituted, which may comprise of the following members: a) The Department of Labour;

111 b) The Police; c) The Municipal Corporation or the local self government like the Zilla Parishad, panchayats etc, as the case maybe; d) Social Welfare Officer/Probation Officer/DM’s nominee/CWCs; and e) NGOs, social organizations, trade unions or other responsible citizens. f) Doctor with first aid kit. g) Lady Police/volunteers when rescuing girls. The actual number of the members of the team will be determined by estimated number of children to be rescued, the geographic area of operation and any other significant factor. (2) The Department of Labour will be responsible for initiating and coordinating efforts towards legal & administrative action. (3) As far as possible, for carrying out any rescue operation, at least four of the aforesaid members shall participate in the same. (4) In addition, the rescue team could be accompanied by the support team while carrying out the rescue operation. The members of the support team could be stationed at critical places to check escape of offenders themselves as well as the children to be rescued. Orientation of all members to be involved in the rescue operation: In case of a rescue operation, a basic Orientation shall be provided to all persons who shall be involved in the rescue operation, including voluntary members, community members etc and shall include the following: (1) Briefing about key provisions of relevant laws that are applicable while dealing with the issue of child labour; (2) All members involved in the rescue operation shall have their respective roles clearly articulated; (3) The members need to be made aware of the different strategies adopted by employers to avoid detection. (4) Since the actual rescue operations may be traumatic for the child, the nodal department should sensitize the members of the rescue team about how to deal with such children, the use of appropriate language and to adopt child sensitive and friendly behaviour, and treating the child as a victim and not as an offender. As these children have been rescued from an exploitative situation, they need to be reassured about the benefits of the rescue operation that will be available to them. Rescue operations For the purposes of conducting a rescue operation in an effective child friendly manner and towards making the procedures less traumatic for the child, the following procedures can be applied: (1) Strategic placement of rescue team members in pre-planned locations shall be undertaken, in order to locate the actual employer of children in that area, and towards preventing the children from being relocated by the employer to evade detection;

112 (2) The police personnel, including women police officers shall accompany the rescue team wherever possible; (3) Physical separation of employers/intermediaries and children and to prevent any communication between them, during the rescue, to ensure that the employers do not threaten the children, or brief them to misguide the team conducting the actual rescue operation. At all stages, care shall be taken by the concerned officials to ensure that the child is not exposed to the employer or his agents; (4) The assigned members of the Rescue Team shall simultaneously collect evidence in the form of documents, and other material & forensic evidence to facilitate effective prosecution against the employers under the law. As far as possible, information must also be collected from the employer towards determining the status and age of the child. The entire operation should be so organized that it does not delay the rescue of the child labourers concerned; (5) The Rescue Team shall ensure the safety of the child as the utmost priority and ensure that they are treated in a humane manner. They shall facilitate that the personal belongings of the child are collected, listed and kept in safe custody to be produced before the Child Welfare Committee/Court. (6) As far as possible and wherever considered appropriate, a trained counselor, Inspector (Factories) and the doctor or suitably trained Para-medic with a first aid kit may be included in the team. (7) The Rescue Team shall ensure that the details revealing the identity of the children rescued are not divulged to the media so that provisions under Section 21 of the Juvenile Justice (Care and Protection of Children) Act, 2000 as amended by Amendment Act, 2006 regarding confidentiality are not violated. A draft model press note should be kept ready and should be completed and issued after the rescue operation; (8) The nodal department must make prior arrangements for transportation for shifting rescued children to temporary shelter homes/drop-in centres, etc. They should also make adequate arrangements for their food and refreshment. (9) The details of every child must be included in the FIR. In case the rescue is conducted by Labour Department officials alone during normal course of inspection or on specific complaint, the responsibility of lodging an FIR of cognizable offence under the appropriate criminal law, wherever applicable, will be with the concerned labour department official. (10)In case the rescued child also happens to be a bonded labour, then the action must be also initiated simultaneously under the Bonded Labour System (Abolition) Act through the appropriate authority. (11)Every rescued migrant or trafficked child labour, including bonded child labour, has to be presented before the Child Welfare Committee. However, in case of bonded child labour, they need to be also produced before the Sub-Divisional Magistrate for grant of certificate and other compensations. This would also include the bonded child labour rescued along with the family. (12)After the rescue operation is carried out, the Child Welfare Committee, as the competent authority under the Juvenile Justice (Care and Protection of Children) Act is empowered to take all actions and decisions with regard to the child, including the decision to release such children, as per the provisions of the Juvenile Justice (Care and Protection of Children) Act.

113 (13)In cases where children are found to be working in non-hazardous occupations or processes, provisions of the Child Labour (Prohibition & Regulation) Act should be invoked to ensure that the working conditions of such children are well regulated as laid down under the provisions of the Act. Action should be initiated against the defaulting employers for violation of the Act, including its regulatory features. (14)Provisions of the Factories Act/the Shops & Establishments Act may also be invoked, wherever possible to initiate action against the offending employers. Post-rescue and Repatriation The Post-Rescue operations include following: Medical Examination: (1) As soon as the rescue operation has been completed, within 24 hours, a medical team shall be dispatched to the place where the children are kept to undertake a medical examination. However, the admission to any children’s home should not be conditional on the requirement of a prior medical examination. (2) Wherever there are actual signs of injuries, hurt or the likelihood of sexual abuse, the child shall be sent to the prescribed medical authority for further medical examination immediately. (3) The medical officer shall undertake a detailed physical examination and record the findings in writing, drawing particular attention to any signs of physical or sexual abuse or any adverse mental health condition. Wherever considered appropriate, the medical officer must keep the child for further observation and also arrange for counseling. Investigation and Collection of Evidence: In addition to the medical examination, the rescue team shall promptly collect all forms of evidence that shall be used in the legal proceedings, which shall include documents of employment, attendance registers, photographs of the workplace, statements of children and other people. Production of the Child before the Child Welfare Committee (CWC): (1) Once the child has been rescued, the child shall be produced before the Child Welfare Committee, under Section 32 of the Juvenile Justice (Care and Protection of Children) Act, 2000; (2) The Labour Department shall coordinate and liaise with the Child Welfare Committee towards facilitating necessary action for best interest of the child in accordance with Juvenile Justice (Care and Protection of Children) Act; (3) The Child Welfare Committee shall be the guardian of the rescued child who are empowered to take decisions in the best interest of the child and shall have the power to secure all relevant information and documentation in order to plan the rehabilitation plan of the child; (4) Wherever required, under the provisions of the Juvenile Justice (Care and Protection of Children) Act and the Juvenile Justice Rules of the State, or in case the Rules have not been framed by the concerned State, in consonance with the Rules framed by the Centre, assistance from the probation officer or the child welfare officer or suitable social worker should be sought. (5) Having rescued the children from work, they shall be produced before the CWC and the nodal Department shall monitor the children till they are restored to their families. If the child belongs

114 to some other State, the child shall be restored to the family by coordinating with State Resident Commissioners, local administration of the district as well as the CWC of the destination district. Temporary shelter for rescued children (1) Immediately after the rescue, these children should be taken to the dropin centres or the temporary shelter homes under the control of Social Welfare Department. (2) Adequate arrangements should be made by the nodal Department for food, clothing and security of these children in the shelter homes in coordination with the Department of Social Welfare/Women & Child Welfare or the NGOs as the case may be. (3) The rescued children to be kept in these temporary shelter homes/drop-in centres until arrangements are made for their repatriation to the home States/families as per the decision of the Child Welfare Committee. Legal Action: (1) Once the Police have completed the investigation, a charge sheet shall be prepared and the judicial proceedings under the Code of Criminal Procedure, 1973 shall apply; (2) Care shall be taken to ensure that all provisions that apply, across different statutes, are incorporated into the Charge sheet/complaint. (3) Investigation into the FIR of cognizable offences will be carried out by Police having jurisdiction over the case. The Investigating Officer (IO) shall ensure that all relevant evidence including material, forensic, documentary evidence is collected and analyzed to build a proper case for prosecution. IO shall also ensure that all relevant and applicable provisions of the criminal laws and labour laws are invoked for the case. IO should also collect and include as evidence relevant reports such as orders of the CWC, home enquiry report conducted under the JJ Act, reports prepared by the officials of the shelter homes/counselors/partner NGOs, etc. (4) Complaints and challans under the labour laws shall be filed by the labour officials. In order to ensure that the case is covered completely, the officials must examine implementation of all applicable labour laws and assess the violations. The labour officials shall also take necessary action for obtaining compensation/claim/wage arrears on behalf of the rescued child. (5) In case, it also turns out to be a case of bonded labour, the labour officials shall immediately inform the concerned executive magistrate to initiate action under the Bonded Labour Systems (Abolition) Act simultaneously. (6) As per the directions of the Hon’ble Supreme Court of India3, labour officials shall also issue a notice to the defaulting employers to deposit Rs.20,000 per child in the District Child Labour Rehabilitation cum Welfare Fund. (7) The Labour Officials would also take appropriate action for deposit of Rs 5,000 by the State Government in the Child Labour Welfare & Rehabilitation 3 M.C. Mehta Vs. State of Tamil Nadu Fund for every rescued child, in case employment cannot be provided to an adult member of his\her family. Assessment and Verification of the Child’s background on the basis of the information provided: (1) The home addresses of the rescued children shall be verified by the State Resident Commissioner/Labour Department officials of the State to which the child belongs, or the district

115 administration as the case may be before these children are repatriated to their home states; (2) In case of claimants of the child, the CWC shall adopt extreme caution and should seek specific documentation, wherever possible, to verify the claims, considering the risks of claims by the employers or their representatives or agents; (3) Considering the risk of the employees tutoring the child, the Child Welfare Committee shall adopt extreme care and caution and must satisfy itself completely and shall record the reasons in writing for taking a decision. (4) For children who cannot be repatriated, care shall be taken for specific measures to ensure their effective short term and long-term rehabilitation within the State itself. (5) The Child Welfare Committee in the home district shall coordinate with the District Collector/District Magistrate towards tracing the child’s family and inform the other Child Welfare Committee of the course of action that would be adopted for their restoration and reintegration with their family. Transportation and Restoration of rescued children: (1) The nodal department of the rescuing State shall make arrangements to send the child to his family under escort. However, it would be the responsibility of the State of the child’s origin to pay for his transportation back to the child’s family. The fare for the child as well as the escorts shall be borne by the State of the child’s origin. (2) The State repatriating the rescued child however will, as far as possible keep a reserve pool of such personnel who could be used for escorting these rescued children. These officials would be adequately sensitized so as to ensure the comfort and safety of these children during the transit back to their families. It goes without saying that these escorts would be responsible for the safety and security of these children until they are handed over to the local authorities of the State of origin. Rehabilitation and Prevention Rehabilitation Plan: (1) The rehabilitation plan shall include two independent components: the educational rehabilitation for the child and economic rehabilitation for the family. The Labour Department and the District Collector of the home district of the rescued child shall be responsible for implementing the rehabilitation plan. (2) The rehabilitation plan must include measures that are sustainable and match both the short term rehabilitation needs as well as long term integration needs of the child and his/her family. The local panchayats must be consulted and taken into confidence by the local authorities while identifying the family of the child labour and their rehabilitation. (3) The Labour Department shall make efforts for the educational rehabilitation of rescued children in their home places under the National Child Labour Project (NCLP) Scheme of the Government in the districts, where this Scheme is in operation and under special bridge centres under Sarva Shiksha Abhiyan (SSA) Scheme in the other districts. The labour department officials shall coordinate the enrolment of these children in the Special Schools under NCLP Scheme and also in counseling and motivating the parents of these children to send them to schools

116 (4) The child labour, who are migrating along with their families on seasonal basis, should be enrolled in the Special Schools under NCLP Scheme in the migrated district or the SSA bridge centres, wherever NCLP Special Schools are not available. The nodal Department along with the District Authorities shall ensure that there is no disruption in their schooling due to migration. (5) Along with the educational rehabilitation of the children, efforts should also be made towards the economic upliftment of their families by covering them under various developmental schemes of the Government in convergence with the other concerned departments. It is, therefore of utmost importance that there is an effective convergence of different income generation and employment generating schemes with the NCLP Scheme. Some of such Schemes could be NREGA, Schemes for BPL families, other poverty alleviation Schemes, Pension Schemes, Schemes for setting up of SHGs under DRDA and DUDA, Indira Awas Yojana, Swaran Jayanti Shahari Rozgar Yojana, Swavlamban, Swadhar, etc. (6) Panchayati Raj institutions should invariably be involved in monitoring the rehabilitation efforts in general and tracking these children and their families in particular for their educational and economic rehabilitation. In fact, they need to be adequately sensitized for this work through extensive workshops and social mobilization campaigns. (7) Efforts shall also be made by the District Child Labour Society formed under the NCLP Scheme for monitoring and tracking of children enrolled in these Schools to identify cases of drop outs and subsequently after mainstreaming to regular education for at least one year so that they do not relapse to exploitative situations. This monitoring and tracking would also help in covering the families of these children labour under various poverty alleviation and income generation Schemes of different Ministries to economically empower these families. Prevention: The following action points are essential for a effective strategy for prevention of child Labour: (1) Awareness and sensitization of the concerned officials of their respective roles and methods to be adopted with the issue of child labour in a child friendly manner and taking proactive steps towards the detecting and eliminating child labour; (2) Public awareness strategies to make people aware of the issues related to child labour and their role and responsibilities in tackling this problem. It would also empower the community members, leaders, teachers, to play an active role in detecting, monitoring, eliminating, and creating awareness on the issues of child labour. This would help to promote universal education at least till the age of 14 years. (3) The Labour Department should make all efforts to step up enforcement of Child Labour (Prohibition & Regulation) Act in the feeder as well as recipient areas. Stringent action against the erring employers shall deter others from trafficking and employing children for labour. Towards this end, the State Governments shall have to create wide awareness on the issue and regularly monitor the enforcement of the Act. (4) The activities of the Recruitment/Placement Agencies need to be regulated by the State Labour Department so that these agencies do not indulge in recruitment and placement of children in hazardous employments and also in their trafficking. The State Governments need to issue strict guidelines for this purpose and as soon as possible enact suitable legislation for registration, regulation and control of the activities of these agencies. In this regard, a model Act drafted by

117 the National Commission for Women may be referred to for regulation of Employment Agencies. (5) Investigation should also focus on identifying the middlemen and agents involved in trafficking of children for labour and action should be taken against them under the relevant legislation. The States should share such information with other States in case of inter State migration and trafficking. (6) In case of cross-border trafficking (across international boundaries) the State Governments should inform the Ministry of Home Affairs for taking up with the concerned country from where children have been trafficked so as to organize their smooth repatriation. (7) Steps should be taken for creation of monitoring and vigilance committees at both the source as well as demand areas, to prevent children from entering into labour situations. The functionaries of the Panchayati Raj institutions should be actively involved in the committees as they can play a very important role in monitoring of these children within the community. (8) To facilitate developing rehabilitation plan for these children, Governments should encourage studies, research activities, data collection, data dissemination on issues of child labour; (9) To ensure quality care in children’s institutions and homes, there should be dissemination of information on the various existing Schemes, whose funds could be utilized for running these Children’s Homes in a better way. (10)To prevent children from getting into the workforce, the families of these children, who are migrating or are trafficked for labour need to be effectively covered under the poverty alleviation and income generation Schemes and Programmes of the Government through convergence of various such Schemes under different Ministries/ Departments. In this direction, every State need to constitute a Core Committee on Child Labour (CCCL) under the State Chief Secretary for providing policy level convergence and State Monitoring Committee (SMC) for Elimination of Child Labour under the State Labour Secretary for convergence in implementation of various programmes and schemes at the state level. (11)The different Government Departments and other stakeholders, including Child Welfare Committees, the State Children’s Commission, the State Human Rights Commission, NGOs etc should work in coordination and develop common strategies towards eliminating child labour. (12)Traditional and cultural practices that violate the full enjoyment of the rights of every child and support child labour should be campaigned against. (13)The State shall ensure that all the concerned stakeholders, particularly the officials entrusted with the labour enforcement work shall be regularly trained and capacity building exercises be undertaken, at periodic intervals, in collaboration with NGOs and other institutions, towards creating a well trained work force. Annexure-1 Roles of key stakeholders 1. Labour – Nodal Department: • Conduct regular surveys of areas having high probability of child labour. • Conduct raids with the help of Task Force in case of hot spots having high incidence of child labour.

118 • Actively participate in all rescue operations of child labour. • Action to be initiated against the employer of the child labour under the Sec 3 of the Child Labour (Prohibition& Regulation) Act in case of hazardous occupations & processes and Sec 7, 8, 9, 11, 12 & 13 in case of non-hazardous occupations & processes. • Surveillance of the establishment where there is information that child labour is being used. • Post rescue coordination with NGOs for accommodation, transportation, producing of children before the Child Welfare Committee, food and clothing and medical check-up. • Coordination with Police for providing security during the raid and afterwards. And also sensitize police of its role and responsibilities during and after the rescue operation. • Involve Chief Inspector of Factories to ensure that area Factory Inspector and Inspector Factories (Medical) is included in the rescue operation. • After the raid, intimation to press including maintaining data-bank of press, prepare draft press note in advance etc. • While conducting rescue operation for girls, to ensure that the lady police and lady representative from NGO/Labour Department/Social Welfare department is included. • Enrollment of rescued child labour in Special Schools under NCLP Schools or SSA bridge centres in the home district. • Coordinate with CWC for speedy repatriation of rescued child labour. • Coordinate with Social Welfare and other Departments, NGOs, etc. for temporary shelter for the rescued children. • Make arrangements for safe transportation of rescued children to home States/families. • Enable safe restoration and rehabilitation of rescued child labour in their home places. • Any other role mentioned in the Protocol. 2. Police: • Provide sufficient police force for Raids • Active Participation during the Raids. • Evidence collection during raids and thereafter. • Taking Custody of the rescued Child Labour by the Task Force. • Arrest the employers under the relevant provisions of law. • Treat the rescued children with care & respect and to hand over safely them to the authorities of Children’s Home. • Juvenile Aid Police Unit (JAPU) for escorting children to their home States. • Cases of child labour should be properly pleaded (as per sec 32), before The Child Welfare Committee. • Booking of middlemen and agents under appropriate criminal laws. • Any other role mentioned in the Protocol. 3. District Administration: • To ensure action under the Bonded Labour System (Abolition) Act, 1976, if applicable.

119 • Arrange for accommodation in temporary shelters of children rescued until they are produced before CWC and repatriated to their homes places. • Instructions to be given to SDMs to give priority to respond to raid/inspection calls. • Make adequate arrangements for the rehabilitation of child labour in their home places including verification of the information pertaining to their home addresses. • Any other role mentioned in the Protocol. 4. Social Welfare Department: • Extend Childline toll-free 1098 helpline service, wherever available for child labour. • Improve infrastructure in Children’s Shelter Homes and increase their strength. • Sensitize CWC about the special needs of the child labour and the rehabilitation plan so as to ensure speedy and adequate repariation and rehabilitation of these children. • Any other role mentioned in the Protocol. 5. Education Department: • Child labour to be accommodated in Residential Bridge Centres under SSA where NCLP special schools are not available. • Providing books and uniforms to the children enrolled in Special schools. • Smooth mainstreaming of children from Special Schools to regular SSA schools. • Identifying child labour in the district level surveys conducted for out of school children. • Any other role mentioned in the Protocol. 6. Municipal Authorities: • Rescued children to be admitted in schools without insisting on various formalities and certificates. • Children should be admitted irrespective of the time of the year i.e. even after the month of October. • Any other help sought by the local administration/labour Department in the rescue and rehabilitation of child labour. • Any other role mentioned in the Protocol. 7. Health Department: • Doctors/female doctors to accompany in raids if required. • Appropriate instructions to be issued to the hospitals for the medication examination of the rescued child labour. • Team of psychiatrists to be identified and communicated, which could help in counseling of the rescued child labour. • Medical benefits to be provided to child labour under the School Health Scheme by the Health Dept. • Any other role mentioned in the Protocol.

120 Standard Operating Procedures (SOP) on Investigation of Crimes of Trafficking for Forced Labour 2008 INTRODUCTION Trafficking for forced labour constitutes a major form of human trafficking. In fact, the history of exploitation, forced labour and slavery is also the history of trafficking. From slaves being trafficked from Africa centuries ago to child labourers being trafficked now in different parts of the world for domestic labour or camel jockeying, trafficking has resulted in slavery. Preventing and combating this scourge calls upon the law to be strongly enforced such that it acts as a deterrent against the entire process of trafficking that leads to exploitation. In India, the existing legal framework to combat the vice of human trafficking for forced labour is provided in: • The Constitution of India - All Fundamental Rights provide protection against trafficking specifically, Article 23 prohibits traffic in human beings, begar and all similar forms of forced labour • The Indian Penal Code, 1860 • The Bonded Labour System (Abolition) Act, 1976 • Juvenile Justice (Care and Protection of Children) Act, 2000 • Local Laws, e.g., Goa Children’s Act, 2003 • Supreme Court and High Court Judgments Such elaborate legal framework must also be assisted with a Human Rights approach that caters to the physical, psychological as well as social needs and ‘best interest of the victim’. Human rights approach: Trafficking in human beings is a grave violation of human rights, which requires a ‘rights based approach’ to ensure that victims are assisted and perpetrators are punished. The officials who deal with the victims should be empathetic and understand the issues from the perspective of the victim. Decision making on and about the victim should be from the paradigm of the ‘best interest of the victim’. The victim has a right to be protected, consulted and informed of all actions being taken on her/ his behalf. Victim friendly procedures: Response to trafficking needs to be victim - centric. Any action being initiated by the law enforcement agencies should keep the victim as the focal point. This requires that: • Victim is aware that she/ he is a victim of a crime and is being assisted by law enforcement. • Victim is not arrested and the exposure to police and stay at police station is minimal. • Victim is extended all help and assistance. Multi-disciplinary approach: Response to trafficking requires simultaneous attention by various agencies mandated to carry out the diverse tasks. Therefore, law enforcement agencies such as police, Executive Magistrates and labour department officials need to coordinate amongst themselves along with other stakeholders such as prosecutors, counselors, Non Governmental Organizations, Juvenile Justice Board, Child Welfare Committee, National and State Human Rights Commission, National Commission for Protection of Child Rights, local media, local government hospitals and others. However, the legal response to the offences of trafficking for forced labour has to be primarily led by the police, labour department and the Executive Magistrates.

122 Child rights issues: Though the victim could be any person, large number of victims trafficked for forced labour are children. Children are more vulnerable and therefore, subject to extreme violations during and after trafficking. Improper response can aggravate the harm caused to them. Therefore, law enforcement response has to be child rights oriented. Gender Issues: Girls, particularly in informal sectors, such as domestic labour, agriculture and circuses or occupations where they are required to stay for longer hours, especially nights, need special care and protection. After their rescue, an inadequate response to the trafficked victims by various agencies further exacerbates gender discriminations and gender violations that already exist in society. Hence, gender sensitivity is an essential requirement in addressing Human Trafficking (HT). The procedures and steps undertaken by the responders should conform to gender rights. Organized crime approach: Trafficking is an organized crime extending beyond boundaries and is multi-dimensional in nature, because: • It involves in itself the elements of several crimes, such as selling, buying, physical and sexual abuse, harassment, wrongful confinement, kidnapping and abduction, assault, threat, bonded labour, child labour, cruelty to children, etc. • The scene of crime extends through the source, transit and destination areas and is thus a continuing offence, starting with recruitment and procurement and continuing until the victim is rescued. • It involves multiple abuses and abusers, who are networked and organized. OBJECTIVE: The Standard Operating Procedures (SOP) is meant to help the investigator in carrying out professional investigation so as to ensure: • Planning a proper rescue operation with the assistance of other stakeholders • Victim assistance during rescue and repatriation • Subsequent compensation and rehabilitation • Conviction of the offenders (traffickers as well as employers) • Expeditious, effective and timely law enforcement

123 • Non-harassment and non-victimization of victims • Appropriate protection, care and attention be provided to victims and witnesses • Post conviction steps are initiated against the offenders (such as closure of places of exploitation) • Appropriate steps are taken for prevention of trafficking and re-trafficking. The SOP may also be referred to by NGOs who are stakeholders in the pre and post rescue procedures related to victim care, protection, counseling, rehabilitation and or repatriation. STRUCTURE: The SOP provides a step by step guide to the police and other response agencies in addressing the issues of human trafficking for forced labour. This SOP is meant for a user who has basic knowledge and experience in the application of the provisions of the substantive and procedural laws, such as Indian Penal Code (IPC), Criminal Procedure Code (Cr. PC) and Indian Evidence Act as well as the basic procedures in the investigation of crimes. Therefore, the SOP does not go into a detailed discussion of these laws and procedures but is confined to specific areas of professional work. It has been divided under the following segments for complete clarity and ease of communication: • Concepts of Trafficking • Pre Registration of Crime • Rescue • Registering Crime • Investigation • Post Rescue • Charge Sheet • Prosecuting Crimes • Post Conviction • Prevention • Referral Mechanisms • Role of Supervisory Officers • Human Trafficking: Responsibilities of the Police

124 CONCEPTS OF TRAFFICKING 2.1 Definition of Trafficking The United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, 2002 (hereinafter referred to as the UN Protocol 2002) supplementing the UN Convention Against Transnational Organized Crime, 2000 provides specific clauses defining trafficking. A) Trafficking as defined under Article 3 of the UN Protocol, 2002 “Trafficking in persons” shall mean the recruitment, transportation, transfer, harbouring 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. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs”. Activities Means/Methods Purpose/Intention (any of these) (any of these) (any of these) Recruitment Threat For the purpose of exploitation1- Transportation Force Prostitution of others Transfer Other forms of coercion Other forms of sexual exploitation Harbouring Abduction Forced labour or services Receipt Fraud Slavery or practices similar to slavery ... of persons Deception Servitude Abuse of: Removal of organs Power Position of vulnerability Giving or receiving of payments or benefits The ‘consent’ of a victim of trafficking shall be irrelevant where any of the means set forth above have been used. ‘Consent’ is irrelevant in case of children even if this does not involve any of the means set forth above. B) Prohibition on trafficking under the Constitution of India The Constitution of India guarantees rights of equality, freedom, protection of life and liberty, as well as the rights against exploitation. Specifically, Article 23 of the Constitution states that traffic in human beings and begar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law. International Labour Organization (ILO) CONVENTION 29 (Forced Labour Convention (No. 29) Concerning Forced Labour) defines FORCED OR COMPULSORY LABOUR as all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered herself/ himself voluntarily [Article 2 (1)].

1 The Annotated Guide (2002) to the Complete UN Trafficking Protocol consisting of The UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children provides a definition of “exploitation”.

125 Further, a SERVICE is any economic activity that does not result in ownership. And penalty is disadvantage or painful consequences resulting from an action or condition. FORCED LABOUR vs. BONDED LABOUR The Supreme Court has ruled in: 1. People’s Union for Democratic Rights (PUDR) vs. Union of India [(1982) 3 SCC 235] “...Any factor, which deprives a person of choice of alternatives and compels him to adapt one particular course of action may properly be regarded as ‘force’ and any labour or service which is compelled as a result of such ‘force’, it would be ‘forced labour’...”. “...Where a person provides labour or service to another for remuneration which is less than minimum wage, the labour or service provided by him clearly falls within the scope and ambit of the word `forced labour’... as described in Article 23 of the Indian Constitution”. 2. Bandhua Mukti Morcha vs. Union of India [1982 (2) SCC 253] “…Whenever it is shown that a labour is made to provide forced labour, the court would raise a presumption that he is required to do so in consideration of an advance or other economic considerations received by him and is, therefore, a bonded labour…” Thus in India, forced labour/ bonded labour/ unlawful compulsory labour denote similar working conditions. Under the Bonded Labour Act, Sec 15 - Whenever any debt is claimed by a bonded labourer, or a Vigilance Committee, to be a bonded debt, the burden of proof that such debt is not a bonded debt shall lie on the creditor. Thus, as Supreme Court has ruled in PUDR vs. Union of India [1982 3 SCC 235] that in any situation where a trafficking victim is not getting minimum wages, the presumption shall be that the victim is a bonded labourer, regardless of age. The onus of disproving this presumption is on the employer/ trafficker. 2.2 Myths and Misconceptions of Human Trafficking • The victim or victims’ family knew what they were getting into • The victim was paid for services/ labour • The victim had freedom of movement • There were opportunities to escape but the victim did not • Trafficking involves crossing of borders • If trafficker is related to the victim, there is no trafficking Human Smuggling vs. Trafficking Human smuggling and voluntary illegal migration are illegal transport of a person, in particular across a border. This differs from trafficking because it does not necessarily include the elements of force, fraud, deceit resulting in any/ many forms of exploitation. Why are people trafficked? It is easy to exploit a trafficked person because she/ he is vulnerable. This is due to: - – Unfamiliar environment – Different language – Distance from her/ his support system (family, friends and well wishers)

126 – Separation from the sphere of influence – In case of children, cheap/ free labour – Various other reasons… 2.3 Who is a ‘victim’ of trafficking for forced/ bonded labour? • Any trafficked person is a victim, irrespective of nationality, age or sex. • Children who have not completed the age of 18 years and are engaged in hazardous processes or occupations and/ or for less than minimum wages which are mandatory under The Minimum Wages Act, 1948. • Any person, regardless of age, who has been trafficked in consideration of an advance (money or benefit) and/ or is now working for less than minimum wages. • Any child likely to be trafficked is a “child in need of care and protection” under S. 2 (d) of JJ Act and therefore, is a victim who should be rescued. • Anybody who has been recruited, harboured, transported, detained, obtained or procured for forced labour. • A person whose fundamental rights are being violated. NOTE: The above list is illustrative and not exhaustive. There may be other similar situations where in a person becomes a victim of trafficking. REMEMBER All children/ minors are victims. All trafficked persons are victims, irrespective of proclaimed or apparent voluntariness. NOTE: In borderline cases, where there is doubt regarding age, presume that the person is a child/ minor. CASE STUDY Some circuses have emerged as one of the covert mechanisms for cross - border trafficking, especially of children from Nepal. Girls are recruited by forced or often by the enticement of a grand lifestyle. Most of these girls end up in prostitution and for those who are employed in circuses, they are often kept in conditions of slavery. In 2004, while rescuing girls from a circus in the state of Uttar Pradesh, human rights activists were attacked by the Circus owner and his trafficking partners. The girls were hidden and upon a judicial order on a Habeas Corpus Petition, when the girls were found, they had horrifying tales to narrate. The girls could not run away even if they wanted to, they were physically/ sexually abused and even supplied to others as favours. Yet, even after their rescue they could not decide whether they wanted to go back home or not. This was due to the trauma that made the girls apprehensive and scared of the outside world. Traffickers often use various control tactics to ensure that the victims remain in their physical and mental control. 2.4 Who is a trafficker? A trafficker is any person, who is - • Involved in any act in the process of trafficking • Who gains/ makes profit/ exploits • as the trafficked person passes through a chain, • from the point of source area to the point of final destination and • thereafter, throughout the process of exploitation.

127 The list of traffickers given below is only illustrative and not exhaustive. A trafficker could be any of the following person(s) involved in the process of trafficking: • Recruiters • Agents of recruiters • Sellers of trafficked person • Buyers of trafficked person • Transporters • Conspirators • Abettors • Financiers • Placement agencies • Parent(s) and guardian(s) who knowingly sell/ cause to sell/ traffic their children/ ward • People who keep custody of the victim during the act of trafficking • Any other person who is involved in any act in the process of human trafficking • Employers (contractors as well as principal employers)

HUMAN TRAFFICKING: THE DYNAMICS OF CONTROL (Modus operandi used by traffickers/ recruiters/ employers): • Debt bondage, financial obligations or honour bound to satisfy debt. Debt bondage commonly includes the initial transportation fee, charges for food, housing, clothing, medical expenses or fines for failing to meet daily quota of production, services and is recurring and multiplying - increasing with time. The victim can never get out. • Isolation from family, members of own (ethnic/ religious) community, limiting/ monitoring contact with outsiders. • Confiscating passports and/ or other identification documents. • Use or threat of violence towards victims and/ or family members. • Threat of shaming victims by exposing circumstances (physical, sexual abuse, etc.) to family and/ or public. • Telling victims they will be imprisoned or deported if they contact authorities. • Control of victims’ money and other personal belongings. • Victims are often moved from location to location, or traded from one establishment to another resulting in a situation where victims may not know which town/ city/ state they are in and are thus unable to seek help. • Create a dependency using tactics of psychological and emotional abuse. The rationale for using such techniques is to instill fear in victims. Victims’ isolation is further exasperated because they do not know whom to contact for help. REMEMBER: An individual need not be beaten or restrained physically to be a victim. PRE REGISTRATION OF CRIME 3.1 Intelligence collection and sharing Source Information is a major area of intelligence collection in India in discovering crimes of trafficking and rescuing victims. Hence, efforts in this direction need to be streamlined for best

128 results. REMEMBER

STEPS TO BE TAKEN POINTS TO NOTE Collect intelligence on crime linkages of • Trafficking involves multiple abusers and traffickers, all exploiters and their associates multiple crimes. from source, transit and destination areas. • Enquiry into missing persons can lead to Share intelligence on linkages of crime and intelligence on trafficking. criminals within jurisdiction with concerned • Enquiry into media reports or journalistic Station House Officer (SHO)/ Superintendent of enquiries may provide valuable Police (SP). information Providing intelligence/ Share intelligence on inter-state/ international information to source, transit and linkages with law enforcement of the state on destination area police will lead to Anti Human Trafficking (AHT). simultaneous and concerted action. Decoy Operations: Trafficking networks may have inter-state • When possible, conduct decoy operations and international ramifications and to collect intelligence. intelligence on one crime can lead to detection of other crimes. • Take precautions for the personal safety of the decoy. • Maintain confidentiality of the source and • Decoy can operate as ‘customer’, ‘traffic- information. ker’, ‘labour contractor’, ‘middleman’, etc. • Exercise care and caution in selecting • Brief the decoy, especially about the decoy. vulnerability of the trafficked person so • Decoy could be: that the victim is not traumatized further. • Police official • The decoy should not be in a position to • NGO representative take advantage of the situation. • Any person willing to be a decoy Develop intelligence on victims and likely • The decoy must be sensitized regarding the victims (vulnerable persons, persons in difficult helplessness of the victim and the risks situations, vulnerable communities, vulnerable involved for the victim in conducting such areas such as source areas, etc.) operations. • Collect intelligence at transit points: Intelligence on traffickers may lead to other depute watcher/ spy/ source, etc. at these links in the chain. Intelligence on likely places to look for both victims and victims will help in easier identification of offenders in transit. victims, especially during transportation. • Collect intelligence from the demand areas Trafficking is an organized network crime, (on exploiters, on demand patterns, etc). involving multiple crimes and multiple • Media reporting (intelligence from media offenders. Database should be updated reports, advertisements, etc.). and disseminated without delay so that the Develop database on traffickers (including agencies concerned could use it at the right recruiters, financiers, ‘customers’, etc.) time.

129 • Source could be anybody. • Involve NGOs, crime stoppers, help lines, police control room, etc. • Use previously rescued survivors as sources; informed consent must be taken. • Develop partnerships with NGOs as they are important sources of information. • Obtain full details of the information, names, phone numbers, place, etc. before rescue operations. • Cross checking/ verification of information should be done before rescue operation. • Steps are taken to prevent leakage of information. Share information with only those who need to know. • Media reports may be a valuable source of information. • Confidentiality of the source is maintained at all costs. An illustrative list of where source information can be obtained is listed below. Note that this list is not exhaustive: Illegal and legal factories Travel agents, authorized and unauthorized Tourist operators Immigration agents Hotels Placement agencies Abortion clinics Help Lines/ helpdesks run by government/ NGOs Illegal drug dealers Dealers in legal/ illegal liquor trade Known source areas Officials of other departments, e.g. Labour Department Transit points: Bus stops Railway stations Airports Tourist destinations Immigration offices at borders Custom offices at borders Media reports: Print and electronic Advertisement in newspapers etc. about placement agencies, massage parlours, etc. RESCUE 4.1 Steps to be taken for rescue procedure: RESPONSE HAS TO BE QUICK AND EFFECTIVE Step 1: E n t e r s o u r c e

130 information in the General Diary (GD) of the Police Station (PS) in such a way that anonymity of the source/ victim/ location is not compromised. Step 2: Any rescue operation should be so designed as to include details of location, entry and exit points, ways and means of removing victims securely and preventing the disappearance of traffickers. All entry and exit points must be secured. Carry out a recce of the place to be searched. An official conversant with the local language be sent to the place incognito. The help of local officers/ NGOs be taken, provided the information remains confidential. Empowered survivors, who are willing to co-operate, could be useful in recce. After recce, draw a sketch map of the area which could be used for briefing and for assigning specific duties to the officials who will participate in the rescue. This includes duties such as cordoning, guarding entry and exit points, locating the hide-outs, identifying safe place to keep the rescued persons till completion of the rescue operation, etc. Step 3: Rescue team should, where ever possible, be accompanied by a Sub Divisional Magistrate (SDM), who is the implementing authority under the Bonded Labour System (Abolition) Act, 1976 and officers of the labour department, so that the Child Labour (Prohibition and Regulation) Act, 1986 may also be utilized wherever applicable. Step 4: Rescue team should, where ever possible, obtain a search warrant from the jurisdictional Magistrate u/s. 166 Cr. PC if SDM is not accompanying. Since the SDM is the implementing authority under the Bonded Labour Act, any complainant including an NGO can approach the SDM for rescue/ identification. Step 5: Ensure adequate number of officials for rescue. If rescued persons are to be interviewed, it shall be done by a police officer and not in the presence of the employer or any of his agents. If possible, the interview should be done by a member of a recognized welfare institution or organization (NGO) or a qualified social worker1. • Secure help of NGOs to act as witnesses. • Team should have at least one officer who is legally empowered to conduct rescue ie. a labour department officer authorized by the court or duly authorized by the Magistrate. • Maintain a list of officials of labour department and NGOs working on Anti Human Trafficking in the area. If no NGO is available, the services of any Government employee/ panchayat representatives, etc. may be utilized. Step 6: Arrange materials and equipment required for documentation and evidence collection (such as writing pad, white paper, pen, pencil, box for transporting the exhibits, box for belongings of the rescued persons, camera, videography, audio recording equipment, first aid kit, torch lights, hammers, cutters, etc.) Drinking water, snacks, etc. may also be arranged well in advance before a rescue. Step 7: Inform the appropriate authorities regarding the proposed activities, including the places to be visited/ searched and the proposed time. Step 8: Alert the authorities of the Government run Homes or recognized homes run by NGOs at the place of rescue regarding the approximate number of persons likely to be rescued and the time when they are likely to be brought to the Home. Step 9: Arrange adequate number of vehicles and escort for the rescued persons so that the

1 Neeraja Chaudhary vs. State of Madhya Pradesh (3 SCC 243 1984, para 255).

131 victims are always kept segregated from the offenders. Step 10: Identifying the victims during rescue; age is immaterial. No victim should be left behind. Step 11: Talk to the victim. Try and make the victim comfortable as soon as possible. Step 12: Immediate efforts should be made to win the confidence of the victim. Remember, most victims, especially children are scared of the police and many victims are often threatened by the employers that if they don’t work harder, police will arrest them. Step 13: If the rescued persons belong to another state(s), inform the Nodal Police Officer of the concerned state(s). 4.2 Working with victims2 First response to victims: Victim must be informed immediately as to what is happening/ why the police and others have come and why s/he is being rescued. INTERVIEWING VICTIMS - LOOK BENEATH THE SURFACE The following points illustrate a number of challenges that law enforcement officials confront when having to interview victims of trafficking: • Victims come from different social, cultural and ethnic backgrounds, which may be different from that of the investigating officers; so the investigating officer should be a trained person to handle the situation and seek the information gently and correctly. • There may be a language barrier between the victim and the investigating officer. As far as possible, the recce should reveal the language predominantly spoken by the victims and suitable translator(s) should be taken along for the rescue operation and the subsequent investigation. • Victims may be completely unaware of their rights or may have been intentionally misinformed about their rights. A briefing with the victims ought to be done to inform them about what is happening with them, what their rights are, what would eventually be the process of repatriation and rehabilitation. • The victims may fear not only for their own safety but also for that of their families. All such fears must be listened to and addressed with utmost care and compassion. If the suspicions are found valid, necessary actions must also be taken. Statement of victim is recorded u/S. 161 Cr. PC by the Investigating Officer (IO). However, this happens only after the First Information Report (FIR) is registered. Therefore, in such situations where pre-FIR rescue is undertaken, the police officer, the labour department, the SDM can all make notes of the relevant aspects including - • The list of victims with details of names, address, age, identification particulars, etc. • The details of the Scene of Crime, which have to be recorded in the Case Diary. • The list of witnesses whose statements are to be recorded. • Any other relevant observation which can be of use later. • It is possible and common that the victims who are under threat/ trauma give wrong

2 For details, see Journey to Justice: A Manual on Psychosocial Intervention, UNODC, 2008.

132 information at this stage. Therefore, any statement of the victim, including statement u/S. 161 Cr. PC, should be recorded only when the victim is willing, comfortable and fit for statement. • Statement to be recorded after assuring her/ him that whatever is being done is in her/ his best interest. CASE STUDY Bai Ram, a bonded labourer in a stone quarry in Haryana was told by his employer that the only way his daughter would not be raped was if he would bring 2 other

DOs DONTs 1. Assurance Policing: inform the victims that 1. NEVER treat any victim as accused in cases they are not accused. where a victim has been coerced/ forced to 2. Do treat victims with dignity. traffic others. 3. Do use the services of translator for victims 2. Do not get offended if the victims, who are speaking different languages. in trauma, use abusive language or do not cooperate. 4. Do take complete precaution to ensure that the identity of the victim is not revealed 3. Avoid insulting and humiliating language/ and anonymity is maintained. demeanour/ gestures, etc. 5. Keep victims away from accused. Ensure 4. Do not allow media publicity of victims such compliance of provisions of S. 21 JJ Act and that it reveals their identity. S. 228 A of IPC (at the time of rescue, sexual 5. Do not allow media to take pictures of the exploitation may not be known). rescued persons. 6. Do keep the victims informed of the various 6. Do not let the accused/ offender stages of the investigation. intimidate, threaten, or harm the victims. 7. See that the victim’s children/ wards (if any) 7. Exploiters may try to hide the children (if are also rescued along with the victim. any) of victims as a bait to ensure that the 8. See that the victim’s belongings are also victim returns. Do not allow this. taken along with the victim. 8. Exploiters may hide and/ or hold back victim’s belongings, including earnings of the victim. Do not allow this.

children to work in his daughter’s place. He was thus forced to become a trafficker even though he was a victim. 4.3 Working with witnesses/ informer/ complainant: 1. The witnesses/ informer/ complainant should be protected from unwanted exposure, threat, intimidation or harassment by the trafficker, employer, or any other offender and her/ his people. 2. S/he should be provided transportation, residential facilities, where ever possible and required. 3. Rights of witnesses should be ensured. Do not detain them if not required. REGISTERING CRIME 5.1 Where to register FIR

133 Trafficking is a continuing offence. The provisions of IPC with respect to offences of abduction/ kidnapping provide for registration of FIR at any place from the source to the destination1. Similarly, FIR could be registered at the place of demand/ destination area/ place of employment (mostly the place of rescue) or the place of transit, or at the place where the person was trafficked from (source area). Frequently asked questions 1. Can Police register an FIR without complaint/ direction from labour department or SDM? Ans.: YES. Police can register an FIR without a complaint from anybody or without directions from District Magistrate (DM)/ SDM under the provisions of IPC. Police can investigate the matter and rescue the victim as well. 2. Can Police rescue without Labour Department/ SDM? Ans.: YES. 3. What is the role of the labour department? Ans.: Labour department can act under the provisions of Child Labour (Prohibition and Regulation) Act, 1986 in the case of a child under 14 years as well as under other safety and welfare legislations. 4. Is order of SDM an essential requirement before rescue? Ans.: NO. Rescue can be done by the police without orders of SDM. SDM is however, the implementing authority under the Bonded Labour Act and provides for the rehabilitation package to the victim upon rescue under the Act. 5. What is a rescue? Can NGO rescue a victim? Ans.: A rescue is a legal process that involves release/ liberation and assistance to the victim and legal action against the trafficker/ employer. An NGO or any person cannot conduct a rescue by themselves. They need help/ assistance from the law enforcement agencies. 5.2 Who can be the complainant in registering FIR of a crime of human trafficking? A complainant could be anybody including: • SDM (who can order the concerned police station after identification/ rescue of bonded labour) • Labour department • Police officer • NGO • Parents/ relatives of victim/ primary care givers • Child Welfare Committee (CWC) • Victim • Any other person who has knowledge of the crime 5.3 Drafting FIR • Appropriate sections of Bonded Labour Act, Child Labour Act and Juvenile Justice Act

1 For details, see Resource Book on Legal Framework on Trafficking, UNODC, 2008

134 should be used in FIR along with the Indian Penal Code. • Where ever possible, IPC provisions (such as, S. 367, 372, 373, 374, 376, 377, 120 A, 120 B, 416, 417, 339, 340, 341, 342, 506, 511, etc.) be invoked. • Local legislations like Goa Children’s Act, 2003, the Maharashtra Control of Organized Crime Act, 1999 (MCOCA) can be utilized, where ever applicable. FIR may contain: • Essential ingredients of the sections of the law referred to. • Details of Source, Transit and Destination. • Telephone numbers, cell numbers, internet sites, ‘cover addresses’, inter and intra state sites, etc. • Brief description of ‘Scene of Crime’ and the ‘Material Objects’ seized. • Description of the living and working conditions of the victim, for e.g., age of the victim, wages, hours of work, nature of employment, etc. • Authority of the police officer who conducts the operations or activities of rescue, investigation, i.e. in one or more of the following situations - • Investigation by a police officer, or • Investigation by a sub-ordinate police officer, authorized by the State Government, or • Investigation by a sub-ordinate police officer, authorized by the relevant Magistrate (Metropolitan Magistrate, Judicial Magistrate of the First Class, District Magistrate, or Sub-Divisional Magistrate) under Child Labour, Juvenile Justice Act and/ or Bonded Labour Act. • Names of officers, NGOs, witnesses who accompanied the police party for the rescue. • Details of the physical injuries and trauma. NOTE: • Do take care that mentioning the apparent age of the victim is a crucial factor in deciding the course of action to be followed. • When the rescued person is an adult and s/he says that s/he was trafficked when s/he was a child, use the sections of law, which would apply to child trafficking, such as Sec. 367, 372 (Whoever sells, … any person under the age of eighteen years … for any unlawful and immoral purpose …), 373 (Whoever buys, … any person under the age of eighteen years … for any unlawful and immoral purpose …) of IPC. • Name of the IO/ Registering officer should be clearly written along with designation in the FIR. • Name of the Magistrate, designate and date of the order of the authorizing person, if any, be recorded legibly in the FIR. INVESTIGATION 6.1 Collection of ‘Material Objects’ (MO) from the Scene of Crime

135 A) What to Collect: Since trafficking is an organized and continuous offence, do not miss out in collecting all the ‘Material Objects’ from the scene of crime and linking them through investigation, to the offence of trafficking. Given below are some examples of MO and their relevance for investigation. B) When to collect MOs: MOs should be collected at the scene of crime, during rescue/ or immediately thereafter, under

What to Collect Relevance for Investigation • Diaries, notebooks, account books, • To prove existence of workplace; name of registers in the place of work and work victims (already trafficked, likely to be orders. trafficked); number of victims; details of • Material being produced, in case the payments, wages; earnings; accomplice; victims being rescued are working at a conspirators; abettors; traffickers and factory/production unit/ sweatshop etc. others; to prove hazardous employment, bonded labour, age of victims, etc. • Travel documents, bus/ train/ air tickets, papers of travel agents, visiting cards of • To prove movement of persons during travel agents, etc. trafficking; to link source, transit, destination areas; to link the offenders in • Rent agreement, rent receipts, house tax the process of the crime. receipts, ration cards, passports, electricity/ telephone/water/ mobile • To prove the existence and address of the phone bills, voter identity cards, driving workplace and people who are managing it. licenses, registration papers of vehicles, • To prove the existence of an organized insurance policies, investment details, bank network of criminals and possible sexual books, money order receipts, etc. abuse. • Photographs, albums, videos, letters, pornographic material, computers, hard discs, Compact Discs (CDs), brochures, advertisements in media. panchnama. No time should be lost in seizure, as the exploiter/ offender will try to destroy/ conceal them. C) From where to collect MOs: • Search the person of the accused for documents and material exhibits (such as cell phones, travel documents, note books, etc., relevant to the crime). • Look for documents/ materials/ exhibits at the scene of crime in the source, transit and destination areas. • Search the vehicles of transportation. • Search the places/ hotels, etc. where the offenders and victims may have halted anytime during the process of trafficking. • Search the hideouts/ residence/ place of stay of the offenders and suspects. • Search the bank lockers and other places/ agencies where the offenders have made

136 investments. • Search the customers/ clientele/ end product user (company/ business house for which production was being done) if victims have been rescued from a factory/ place of production of goods or services whose names figure prominently as exploiters.

REMEMBER TO DO THE FOLLOWING: • Detailed scrutiny of MOs • Deposit the MOs with Magistrate as per the State Rules • Scrutinize and analyze the FIR with respect to the MO seized • Ensure proper chain of custody (this may involve different police agencies, both inter and intra country) • Connect crime to criminal (source and the destination may be in different States)

6.2 Interrogation of the suspects/ accused: This is an essential requirement in any crime. In crimes of human trafficking, interrogation should be focused on the following: 1. To know the entire organized linkage (Source - Transit - Destination) of trafficking and its dimensions. 2. To know the entire process of human trafficking, the dimensions, the demand and supply patterns, the ‘push and pull factors’, etc. which will not only help locating evidence against the offenders but also provide intelligence in prevention of such crimes. 3. To explore contacts in the Source - Transit - Destination areas. 4. To find the means, routes, methods used for transportation of victims. 5. To know the communication channels (land line phones, cell phones, internet, etc.) of traffickers. 6. To understand the details of procurement, i.e. advance paid to parents of victim, advance paid to the victim and force used, if any. 7. To know whether others were trafficked with the victim. 8. To investigate the modus operandi of traffickers (all operational ways and means, such as, placement agencies, false marriage, jobs, work in cinemas, etc.). 9. To know the criminal antecedents, investigating the various dimensions of organized crime, nexus etc. 10. To know the details of the victims who have been trafficked earlier and/ or are likely to be trafficked (vulnerable sections). 11. To understand the motive/ intentions/ incentive of the traffickers. 12. In case trafficked victims are involved in production of goods and services, to find out the entire chain of demand and supply in order to prove vicarious liability. 13. To ascertain the financial transactions between the offenders. 14. To locate the illegal assets and take steps accordingly. 15. To ascertain the extent of harm done to the victim.

137 Considering the organized crime linkages in human trafficking, it is advisable that simultaneous investigations are carried out into all linkages of the offenders by: 1. Associating other agencies for interrogation such as • The income tax department and financial institutions where huge assets are disclosed or likely to be disclosed. • The immigration department, when foreign accused are involved. 2. Using scientific techniques/ methods in interrogation. 3. Carrying out scientific interrogation (1st degree = interrogation and 2nd degree = confrontation) 4. Interviewing the accused before interrogation, etc. to elicit themes and ideas for interrogation. 5. Using flow charts to depict the movement of persons trafficked, the mode of transportation and financial transactions. 6. Team interview has been found successful in interrogating organized criminals. 6.3 Arrest of accused persons 1. Being an organized crime, the arrest of the accused should be done at an appropriate time and without any delay. 2. Follow up on communications, especially the cell phones used by the accused before and after arrest, as it can lead to intelligence of trafficking links and maybe more arrests. 3. Medical examination of the accused may be done as required under S. 53, 53 A and 54 of Cr. PC. 4. If a woman offender is to be arrested do not fail to utilize: • the provisions of s. 46 (4) Cr. PC (no woman should be arrested after sunset and before sunrise, but in exceptional circumstances, the woman police officer shall obtain prior permission from the jurisdictional Judicial Magistrate First Class), and • provision of s. 50 - A, Cr. PC (obligation of person making arrest to inform a nominated person about the arrest etc.). NOTE– The arrested female offender should be searched only by a female police official u/S. 51 (2) and 100 (3) Cr. PC 6.4 Collating evidence from other places • If the trafficking is intra-district, collect evidence from the concerned PS. • Inter-district linkages (but not inter-state) can also be attended to by the same IO after following administrative approval of the controlling official. • When inter-state crime linkages are found during investigation, immediately take it up with the concerned PS in the other states so that no time is lost in simultaneous investigation. This will also help in sharing further intelligence and data on crime and criminals. Do keep the Police Nodal Officer informed during all interstate operations. This will ensure simultaneous investigations and sharing of crime data of offenders. Prompt action will help investigation into the entire trafficking linkages, at all sites, and build up a database of the offenders. 6.5 Closure or sealing of factories, etc. u/S. 105 A-L of Cr. PC

138 The Investigating Police Officer can move an application to the District Magistrate through Superintendent of Police to order detailed inspection of the place of exploitation to record the existing conditions in order to close that place under the provisions of the Criminal Procedure Code or the Criminal Law Amendment Ordinance, 1944. The Labour Department can move an application to the Magistrate to order closure of the illegal factories and cancellation of registration of legal factories/ places of work under Interstate Migrant Workmen (Regulation of Employment & Conditions of Service) Act 1979, The Factories Act 1948, Shops and Commercial Establishments Act and various other safety and welfare legislations. Unlawfully acquired property can be identified (S. 105 D Cr. PC), seized or attached (S. 105 E, Cr. PC). 6.6 Confiscation of assets of traffickers Investigation should be caused into the assets from the crime acquired by the traffickers and other offenders in accordance with the procedure in S. 105 A – L of Cr. PC. The Criminal Law Amendment Ordinance 1944, the Prevention of Money Laundering Act, 2002, etc. should be utilized as and when applicable. The Competent Authority of the Ministry of Finance, dealing with Narcotic Drugs and Psychotropic Substances Act, 1985 and The Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 has brought out protocols and check-list that can be considered by the Investigating Officers in other crimes also for purposes of carrying out investigation. 6.7 Organized crime approach for investigation Human trafficking is a “basket of crimes”1. Multiple abuses are committed by multiple abusers/ offenders who are located at different points of time and place. All together constitute the organized crime of trafficking. The following points need to be considered at all stages of investigation: • Linkage of Source-Transit-Destination must be made during investigation. • Conspiracy angle to be investigated, since there are multiple offenders. • Sharing criminal intelligence with other police agencies on traffickers and other accomplices. • Sharing crime data with other police agencies on vulnerable areas and vulnerable people for trafficking. • Accumulation of assets/ mapping the exploiters profit. • Confiscation of assets is possible under Criminal Law Amendment Ordinance 1944 when IPC Sections are invoked. Therefore, IO may invoke relevant IPC provisions. • Confiscation is possible under S. 105 A-L Cr. PC with respect to assets acquired as a result of trafficking and related crimes. • Collect intelligence on income, expenditure & assets (movable, immovable property) from Source-Transit-Destination and other areas. • Link the assets with the crime. • Evaluation of the assets by Public Works Department/ other competent agencies (for ex. land survey department). • Invoke provisions of all relevant laws which can be used to establish the organized crime perspective. In trafficking cases, Bonded Labour Act, Child Labour Act and the Juvenile Justice Act need to be used along with relevant sections of IPC, MCOCA, Goa Children’s Act, etc. A MODEL CASE

1 For detailed discussion see Nair, P.M. (Dr.), Trafficking Women and Children for Sexual Exploitation, Handbook for Law Enforcement Agencies in India, Second Edition, UNODC, 2007.

139 • On 4 May 2007, a complaint was filed by Bachpan Bachao Andolan (BBA) with the Sub Divisional Magistrate (SDM), Karol Bagh, New Delhi for release of bonded labourers engaged in making jewelry articles, under the Bonded Labour System (Abolition) Act, 1976. • On 19 May 2007, 93 children were rescued in a joint operation by SDM, police, labour department officials and activists of BBA from jewelry units of New Delhi. All the children had been trafficked from West Bengal to New Delhi. The rescued children were immediately taken to a short stay home where the SDM recorded their statements. • On 19 May 2007, the SDM also directed that FIR be registered against all employers u/S. 367, 374 of IPC and Sec. 16 of Bonded Labour Act. The labour department initiated action under the Child Labour (Prohibition and Regulation) Act, 1986 against the employers. • On 25 May 2007, the Resident Commissioner of West Bengal was approached for repatriating the victims back to West Bengal. • In the first week of June all the victims were repatriated to their families. • Based on the statements of these 93 victims and the modus operandi of their traffickers, the Police in West Bengal was approached and investigation against all traffickers was commenced by the West Bengal Police. • A Public Interest Litigation was filed in the High Court of Delhi against child labour in jewelry units to put an end to all trafficking and forced labour in jewelry units and on orders of the Court many more trafficked children were rescued from the area. • On 29 May 2007, all the children were provided with a Release Certificate under the Bonded Labour Act which entitled the victims to a rehabilitation package of Rupees 20,000/- and many other social welfare benefits totaling to more than Rupees 20 lakh. • As a result of all the actions taken by BBA, on 31 May 2007, the employers first attacked the rehabilitation home to forcibly take away the children. When they were not successful, they brought the parents over from West Bengal to move applications for handing over custody to the parents without holding any inquiry. However, the SDM counseled the parents himself and repatriated the children through the correct legal process. This is a model case where the legal processes were simultaneously set in motion at the entire demand and supply chain and action taken against both the traffickers as well as end users that is the employers. Thus, the law was effectively utilized at the source of the problem as well as the destination. POST RESCUE

140 7.1 Recording statement u/S. 161 and 164 Cr. PC While recording the statement of the victim in the Case Diary u/S. 161 Cr. PC the IO should consider the following: • Record statements when the victim is fit (ready and able) to make a statement. • Remember that there can be more than one statement by the victim, as and when s/he is fit to speak. Any contradiction from the previous statement may be explained in the following statement (it is possible that contradictions come in because the victim is traumatized and may not be able to recall events properly). • Remember that the victim is fit to give a cogent statement after counseling. Utilize the services of appropriate NGOs1. • Record the statement in the language of the victim (use a trained / appropriate translator for translating the statement into the court language, as and when required). • When recording the statement of a highly traumatized adult or child victim, it would be advisable to use the services of a trained counselor to communicate with the person. • Let the victim select the place of interview and record statement of the victim. There is no need for taking the victim to a PS for this purpose or for subsequent statements. This could well be accomplished at the Shelter/ Children’s Home where s/he is lodged or any other place of safety where s/he is comfortable (u/S. 160 (1) of Cr. PC). • Mapping the harm done to the victim: The IO records his observations, in Part 1 of the Case Diary (CD) (u/S. 172 Cr. PC). Though Part 1 is not shared with the accused, the court peruses this during trial. Therefore, the IO should record his observations of the harm to the victim (physical, emotional and psycho social) in Part 1 of the CD. The ‘harm factor’ can be aptly recorded u/S. 161 Cr. PC also, to the extent required. Further, in order to make it admissible as evidence (u/S. 14 of Indian Evidence Act, 1872) during trial, the victim has to be examined by an appropriate health professional, whose report will be attached to the CD and a copy of this is made available to the defence, if cited as evidence. • In case of sexual exploitation as well, care may be taken to record the statement in camera and in a non-intimidating environment. The IO may make a prayer u/S. 327 (2) Cr. PC (read along with Supreme Court judgment in Sakshi vs. Union of India2) to this effect. 7.2 Age assessment Rescued victims often include men, women and children. It is important for the IO to do an on-the- spot age assessment of the children who appear to be below 18 years of age but who profess to be over 18 years of age. Such children may be under duress/ coercion/ compulsion by vested interests to declare themselves adults so that the offenders can get them released easily, citing their willingness for the same, and subsequently traffic them back for forced labour. The IO needs to exercise caution against such deceptions. Under Sec. 10 of the Child Labour Act, the labour inspector may also refer the matter to the prescribed medical authority in the absence of a certificate ascertaining the age of the child. In case of trafficking for forced labour, under the Bonded Labour Act the age of the victim is immaterial in order to rescue or provide rehabilitation to the victim. Therefore, at the time of rescue, no decision should be taken to leave any person on the basis of age

1 See Journey to Justice: A Manual on Psychosocial Intervention, UNODC, 2008 2 (2004) 5 SCC 518

141 pending investigation under the Bonded Labour Act. • The IO must try and obtain date of birth certificate, school certificate, ration card, or any other government document, where ever possible to determine age of victim. • The IO must send the victim for age determination test, preferably to forensic medicine department, wherever available. • The IO must also collect all possible circumstantial evidence regarding the age of the victim from the neighbours, locality, from other rescued persons, etc. • In case of doubt or dispute with respect to the age of the victim, the IO must refer the case to a Medical Board. 7.3 Production of the rescued person before Magistrate/ Child Welfare Committee (CWC) How to decide whether the person is an adult or a child? The police officer is called upon to take a decision on the spot whether to produce the rescued person before the Magistrate or the CWC (under JJ Act) and therefore, this decision is crucial. The decision may be taken based on the following principles: • Apparent look of the person. • Consulting the rescued person, making him/ her understand the implications. • Consulting the NGO partner participating in the rescue operation. • Consulting a counselor if available. • Checking available documents, if any. When in doubt, treat the rescued person as a minor. • Produce adult victims before District Magistrate (DM) under the Bonded Labour Act, if the DM/SDM was not accompanying the rescue team. • Produce child victims before CWC u/S. 32 of JJ Act (if the Bonded Labour Act is not applicable). • If the rescue is held at night, the night duty Magistrate may be approached. • If nobody is available, send the rescued children to a Government/ NGO run Home (notified under u/S. 37 of JJ Act). • If a notified Home is not available in the vicinity, the rescued children should be sent to any reputed NGO Home. • If none of the above is available, the police officer should take initiative in arranging a place of safety for stay like, hotel, guest house, circuit house, etc. for the victims who should be accompanied with a female representative of the NGO (if the rescued victims include girls) and a police official. The rescued victims should never be - • SENT BACK TO THE WORKPLACE • DETAINED IN THE POLICE STATION • EXPOSED TO SITUATIONS OF FURTHER RISK 7.4 Medical care of victim and follow up

142 • IO should ensure that appropriate medical care should be extended to the victim without any delay and immediately after rescue. Informed consent of the victim is mandatory before medical examination (made under the suitable provisions of law). • Female victims should be escorted by a lady police official. • An NGO should also be associated in the process of medical examination and care. 1. If victim is female, medical examination be conducted by or under the supervision of a female doctor u/S. 53 (2) Cr. PC. 2. If no female doctor is available, medical examination be conducted in presence of a female official or a female representative of an NGO. 3. The IO should communicate to the doctor to take all steps for respecting dignity of the victim. 7.5 Shelter Homes/ Child Welfare Committee (CWC) The IO should make interim arrangements for sending victim to place of safety such as, Shelter Homes (Government/ NGO run)/ CWC/drop-in-centres, etc. Avoid detaining the victim in the PS or other police outfits. PS should keep a list of agencies running such Homes, including their contact numbers and other details and network with them. 7.6 Home verification • Under Sec. 33 of the JJ Act, when a ‘child in need of care and protection’ is produced before the CWC, the CWC may pass an order to send the child to the children’s home for speedy inquiry by a social worker/ child welfare officer. Such inquiry is to be completed within 4 months of the receipt of the order. • The IO should move the Prosecutor to oppose any release of the rescued person to anybody before Home Verification Report is received. • In the meantime, the IO can request the Magistrate/ CWC to send the victims for interim care to the appropriate Home u/S. 34 of JJ Act respectively. • Before the Magistrate/ CWC hands over the victims in the care of parents/ guardians, the Magistrate/CWC should satisfy itself of the capability and genuineness of the person. The IO should move the Magistrate through the Prosecutor to ensure this and help to avoid any decision otherwise. 7.7 Restoration of victim Considering the ‘best interest’ of the victim, police can play a proactive role in the restoration of the victim by taking initiative on several counts, including the following: • Ensuring that the victims are released to the appropriate person after due Home Verification report by moving the Magistrate with a report to this effect. • Moving the Magistrate not to release the victim to fake or ‘self styled’ or abusive parents/ guardians. • Liaising, supporting and facilitating the NGOs which are carrying out the Home Verification. • Providing security to the victim/ accompanying person/ NGO during transfer of victim. • Facilitating the genuine parents/ guardians to take custody of the rescued victim by

143 networking with the concerned authorities. 7.8 Interim relief to the victim1 Under the Bonded Labour Act, there is a provision for an interim relief of Rs. 1000/- before the legal formalities are completed (the Release Certificate (sample at Annexure 4) would entitle the victim a monetary compensation of Rs. 20,000/-). The IO should send proposals to the concerned authority (District Magistrate) immediately after rescue for extending such benefits to the rescued person, wherever applicable. 7.9 Rehabilitation Rehabilitation of bonded labour has two distinct components: 1. Psychological rehabilitation: The released bonded labour needs to be assured that s/he is a human being, entitled to earn an economic livelihood and have a decent living. Unless s/he is psychologically assured that debt need not regulate her/ his destiny, there is every possibility of him/ her being vulnerable to the vicious circle of trafficking and bondage. 2. Physical and economic rehabilitation has the components of - • Protection of civil rights • Allotment of house site and agricultural land • Land development (including irrigation of lands already in their possession and irrigation of lands allotted) • Provision of low cost dwelling units • Agriculture, animal husbandry, dairy, poultry, fodder cultivation, etc. • Training for acquiring new skills or developing existing skills • Traditional art and craft • Wage employment, enforcement of minimum wages, etc. • Collection and processing of minor forest produce • Health, medical care, sanitation, etc. • Education of children of released bonded labourers Moreover, according to the Centrally Sponsored Scheme2 for rehabilitation of bonded labour (as modified in May, 2000) each released bonded labour (after rescue and issuance of Release Certificate by DM) will get a rehabilitation grant of Rs. 20000/-, out of which Rs. 1000/- would be paid immediately on release as subsistence allowance.

1 Para 7.6.4 of the Abolition of Bonded Labour System: A Manual on Identification Release and Rehabilitation of Bonded Labour, Government of India, Ministry of Labour, New Delhi, February 2004 2 Abolition of Bonded Labour System: A Manual on Identification Release and Rehabilitation of Bonded Labour, Government of India, Ministry of Labour, New Delhi, February 2004

144 CHARGE SHEET A correct and proper charge sheet is an essential prerequisite in securing conviction in cases of crimes of trafficking. IOs should bear the following points in mind when preparing charge sheets in human trafficking crimes. 1. Present the Case Diary with a Crime Map of the entire Scene of Crime from source through transit to destination areas and other places of exploitation. 2. As trafficking is an organized crime, there will be multiple crimes and multiple offenders. All these have to be presented in the documents. Prepare a matrix of crime - offender - evidence and present the same in the CD. 3. Take legal opinion of prosecutor for drafting charge sheet. 4. Use provisions of S. 173 (6), Cr. PC wherever necessary, for ensuring confidentiality of the statement of the victim. 5. Collect all expert opinions and reports that are admissible u/S. 45, Indian Evidence Act. In a trafficking crime the reports and opinions will include: • Medical report of physical injury of the victim. • Medical report of sexual abuse of the victim. • Medical report of Sexually Transmitted Diseases. • Medical history of victim to prove earlier violations on him/her. • Report of age verification/ determination. • Expert opinion on psycho social trauma (‘the harm factor’). • Medical report of the accused in cases of sexual assault. • Any other relevant forensic reports to show the victim’s exploitation, identity of the accused persons, etc. • Copies of statements recorded u/S. 164 Cr. PC in the same case or in any other case, which are relevant. • Copies of statements recorded u/S. 25 Indian Evidence Act, 1872 (extra judicial confessional statements of the accused), if any. • Test Identification Parade report, if any u/S. 54 (A) of Cr. PC. 6. The charge sheet should include the details of terms of employment, the living and working conditions, details of wage or other payments, how did the victim end up in the situation of exploitation, details of subsequent exploitation, etc. 8.1 Further investigation after charge sheet It has often been noticed that rescue in one case leads to intelligence on another crime which may have already been disposed off from the police records. In such situations, after filing charge sheet, it would be appropriate to carry out further investigation, so as to bring out the entire linkages of the organized crime. The IO on receipt of any further information and fresh evidence can cause further investigation u/S. 173 (8) Cr. PC and can file supplementary charge sheet.

145 1 PROSECUTING CRIMES The police can play an important role even at the stage of prosecution. The IO should: • Brief the Prosecutor not only on the facts of the case, but also on the special features of the crime, viz. the trauma of the victim, the organized crime linkages, the need for care and attention of the victims, decisions that can be taken from the ‘best interest of the victim’, etc. • Prepare the victim with the assistance of counselors or NGOs for testimony in court and/ or in front of the Executive Magistrate (Bonded Labour Act). • Prepare the witnesses (getting witnesses on time, briefing and debriefing them, thanking them promptly, etc.) • Travel allowance to victims and witnesses from their homes to the court or place of inquiry whenever called for should be ensured. • Ensure victim/ witness protection during the trial and post-trial situations. • Watch on the bailers and sureties. • Summary trial under Bonded Labour Act can be ordered by the DM/ SDM. • If the case is discharged/ acquitted and the IO feels that there is merit in appeal, the IO should move the prosecutor to file an appeal in the appropriate court. • The IO should ensure that the provisions of S. 437 (3) Cr. PC are invoked against the accused who violates the provisions of bail. The IO should move application for this to the court through the Prosecutor. • IO should ensure that the surety who stands for the accused furnishes a declaration to the court regarding the number of persons for whom he has earlier stood surety including traffickers (S. 441 A Cr. PC). • In case the IO comes to know that the accused trafficker or other exploiters have threatened a victim/ witness, he can file an FIR u/s. 195 A and 506 IPC and take up investigation.

1 For details, see Standard Operating Procedures on Prosecution of Crimes of Trafficking, UNODC, 2008

146 POST CONVICTION The police have a significant function to perform even after conviction of the accused. The IO should move the Prosecutor to apply to the court: • For an enhanced punishment in cases of subsequent conviction and in cases of offences committed against children. • For recovery of fine up to Rs. 20,000/- under the Child Labour Act in the case of children. • Ensure the payment of minimum wages to the victim for the period of work by taking note of the victim’s statement and ensuring proper legal recourse. • The attachment and forfeiture of unlawfully acquired property u/S. 105 Cr. PC. • Externment: the convicted traffickers need to be prevented from indulging in further crime. Externment proceedings under the relevant laws in the States may be utilised. For eg. MCOCA, 1999 in Maharashtra and Delhi, AP Goonda Act, Crime Control Act in Bihar etc. Orders of externment may also be passed against habitual traffickers involved in multiple crimes in a particular place. • History sheets/ suspect sheets: Police should open dossiers and keep watch on the activities of convicted persons and suspects. • Naming and shaming: Wide publicity be given on the convicted traffickers so that: a) It creates adequate impact on the convicted person and on other offenders b) Public gets alerted to the activities of such offenders c) Vulnerable persons are thus forewarned and thereby, trafficking is curtailed.

147 PREVENTION Law acts as a deterrent against any crime and in crimes relating to trafficking, aggressive law enforcement is the best solution. Police officers have an important part to perform in the prevention of crimes of trafficking. IOs may involve themselves in matters pertaining to prevention, such as - • Convicted offender being behind bars means curtailment of trafficking crimes which he would have otherwise indulged in. • Prevention through proper rehabilitation and reintegration to prevent re-trafficking. • Prevention at the source area by identifying vulnerable victims, empowering them through public awareness campaigns, involving concerned agencies for undertaking empowerment programmes, etc. • Prevention at the transit area, such as railway junctions and bus stops. • Empowering survivors by facilitating watch dog groups, being whistle blowers, manning borders, picketing, working with those who prevent crime, etc. • Prevention at the demand area by understanding/ addressing new forms of demand. For example, placement agencies providing domestic child labourers. • Prevention through coordination and cooperation with other agencies, including NGOs. • Keeping vigil at locations prone to trafficking and monitoring the movements of strangers in the villages. • Ensuring that effective patrolling is carried out, by looking out for suspicious movement of victims at places such as highways, dhabas, railway stations and bus stations. • By ensuring check on transporters to prevent physical transportation of the trafficked persons. REMEMBER THE BEST WAY OF PREVENTION IS TO HIT THE ECONOMICS. TRY TO HAVE THE PROPERTY ATTACHED, ENSURE PAYMENT OF BACK WAGES IN ACCORDANCE WITH MINIMUM WAGES ACT, 1948/ COMPENSATION. FOLLOW THE MONEY TRAIL AND YOU WILL FIND ALL TRAFFICKING SYNDICATES.

148 REFERRAL MECHANISM The ‘referral mechanism approach’ recognizes that all stakeholders, including law enforcement agencies must co-operate and work in synergy to develop a truly effective and comprehensive protection structure for trafficked persons. The objective is to rehabilitate trafficked persons and implement sustainable structures that will provide them with support. The police can play an active role as facilitators in several ways: • Referral to a counselor: Rescued trafficked persons to be referred to an appropriate NGO for holistic counseling, especially for relief and rehabilitation. • Referral for health care: When the victim needs immediate medical attention it should be attended to on priority. Suggest a lady medical officer/ medical attendant if the victim is a female. If the service providers are males, ensure that female representatives of an NGO are present. The District Medical Officer/ Civil Surgeon to be contacted. • Referral for psychosocial intervention: The rescued person is often extremely traumatized and needs to be handled sensitively and in a humane manner. The police must make all efforts to facilitate psychosocial help and intervention through the services of a skilled counselor to reduce the person’s trauma and distress. Assistance should be taken from the staff of the government/NGO run Shelter/ Children’s Home. • Referral for legal representation: Though the state is duty bound to take up the legal representation of the victim, private lawyers are often required to intervene, particularly when the victim knows and has trust in the lawyer. Police officials should promote such legal representation. The District Legal Services Authority should be consulted for any assistance required. • Referral for compensation: Men, women and children who are rescued from situations of forced labour require immediate sustenance for their survival. The IO should contact the concerned district administration officials for incidental expenses such as travel, clothing, medicine and other immediate necessities. The District Collector and the District Social Welfare Officer to be consulted. The mandatory compensation under the government schemes should be obtained for the rescued persons. • Referral for rehabilitation: Though this appears to be a non-police job, it is clear that a victim who is not properly rehabilitated can, and more often is, re-trafficked. Preventing re- trafficking is a police mandate; therefore, the police officer should deem it essential to take all steps for proper rehabilitation of the victim. Refer the victim to the government/ NGO run Homes; link up with appropriate rehabilitative agencies, including corporates and other bodies who could provide support.

149 150 ROLE OF SUPERVISORY OFFICERS Existing response systems in India provide a prominent role for supervisory officials in addressing human trafficking through Prevention, Protection and Prosecution. Some tasks for police managers are listed here: • Networking with officials in other districts and other states: The Director General of Police (DGP)has nominated Police Nodal Officers (PNOs) in all states, for this purpose. Since trafficking is a borderless crime it requires borderless policing that can be facilitated through police manager networks. • Developing and sharing a comprehensive database of traffickers/ exploiters. This has to originate from the police station, move to the district and then to the state database, and eventually be amalgamated into a master database at the national database of the National Crime Records Bureau. Data has to be updated on a monthly basis, at all levels and disseminated to all concerned without delay. • Developing and sharing intelligence regularly, on traffickers/ exploiters/ victims. • According adequate priority to law enforcement on Anti Human Trafficking (AHT). There are several activities that can be under taken, e.g. the crime data board displayed in all PS does not show human trafficking data separately. This should be added as a separate head and updated regularly. • Regular review of AHT activities in the monthly crime meetings with the Superintendent of Police/Deputy Commissioner of Police and other officers, to ensure that human trafficking crimes are investigated thoroughly and professionally and progress of work is reviewed constantly. • Taking law enforcement activity beyond the realm of rescue and looking at it from an organized crime perspective. • Providing NGO networks to police officers by developing partnerships with NGOs. • Developing synergy of police with other government departments, especially labour officials, thereby ensuring and facilitating appropriate responses by these departments. • Providing adequate support to ensure speedy trial. • Taking all steps for prevention of human trafficking. • Ensuring a victim-centric approach and perspective in law enforcement. • Short listing and mapping target/ vulnerable/geographic areas and situations to ensure concerted action. • Empowering police officers of all ranks with proper training focused on Knowledge, Skills, Attitude and Resources. • Providing stability of tenure to trained and functional officers handling AHT activities. • Ensuring accountability of officers with respect to the 3 Ps - Prevention, Protection and Prosecution - in their jurisdiction. • Rewarding and commending officers doing good work on AHT. • Documenting and disseminating good practices and providing a forum for wider discussion and emulation.

151 1 HUMAN TRAFFICKING: RESPONSIBILITIES OF THE POLICE Police has responsibilities relating to: • The identification of victims • The protection of victims and support workers • The protection of life • Investigation, intelligence gathering and surveillance, including liaison with national and international enforcement agencies • Gathering all evidence, both scientific and material, to ensure there is a fair trial (this includes the disclosure to the defence of any evidence that may assist the accused) • The recording of crime (this includes rape and assault, abduction etc) and, • Identification and support of vulnerable or intimidated witnesses. Children With regard to child victims of trafficking, police responsibilities include: • Identification of children at risk, (e.g. following raids on off-street sites, responding to referrals from other agencies or members of the public, following up reports of missing children) • Report instances of children in need of protection to relevant child protection agencies • Contributing to the development of victim profiling with other agencies • Undertaking joint interviews with social workers of children identified as victims or potential victims to assess risk and assist in the development of protection plans • Carry out checks on sponsors and ‘uncles’ and ‘aunts’ who claim to be the relatives of children already identified as being at risk of trafficking • Receiving and seeking intelligence, undertaking investigations with immigration officials and any other appropriate parties • Participating in local child protection networks with related organizations (immigration, social services, NGOs, health, education) to develop joint approaches to the issue at local level and contribute to wider forums as appropriate • Responding to media enquiries and utilizing publicity as appropriate to raise awareness and hence improve the quality of intelligence and investigations • Log intelligence material as specified and ensure links with other forces and national/ international policing organizations • If children disappear, initiate missing persons procedures, investigate circumstances and circulate information/ undertake investigations, linking with other agencies as required • Use and contribution to the development of investigation toolkits for trafficking work. Adults With regard to adult victims of trafficking, police responsibilities include:

1 This segment is borrowed from the Model Screening Tool provided by the Department of Justice, Canada in Human Trafficking: Human Trafficking Reference Guide for Canadian Law Enforcement – 2005 (amended for Indian law enforcement officials)

152 • Contributing to the development of victim and offender profiles on an inter-agency basis • Identification of adults at risk (e.g. following raids on off-street sites, responding to referrals from other agencies, members of the public, etc.) • Informing victims/ potential victims of their rights (for example, to obtain legal advice) • Informing victims/ potential victims who are not Indian citizens or permanent residents of their options with regard to immigration status • Identifying support services and referring victims/ potential victims to specialist NGO’s and safe accommodation, where these are available and arranging safe transport • Undertaking interviews, receiving and seeking intelligence, undertaking investigations with immigration officials and any other appropriate parties, logging intelligence material and ensuring links are made with other forces and national/ international policing organizations • Providing protection to victims and staff supporting them, involving the appropriate Witness Protection norms • Making referral to Victim Services for witness preparation and court familiarization • Language support (translation services) • If adults who have been identified as victims/ potential victims disappear, initiate missing persons’ procedures, investigating circumstances and circulating information/ undertake investigations, linking with other agencies as required. Collaboration • Police should work closely with immigration authorities, Border Security Force (BSF), Railways and other transport authorities, provincial/ territorial and municipal agencies, with Social Services, child welfare authorities and with any NGOs involved in service delivery to provide protection to the children • Police need to utilize existing liaison structures with authorities in the states/ countries of origin • Currently, there are no organizations with the sole responsibility of protecting and providing support to trafficked victims; therefore, many agencies need to work together • Although this may reasonably be considered to be the role of an NGO, police may need to provide some specific services, including protection to a trafficked victim during their court case • Police need to provide front-line information/ intelligence to local intelligence offices and data banks • Police should work with other agencies trying to ensure that those who are removed or who choose to return are not re-trafficked; this should include a risk assessment of the danger to returning victims (child care authorities would prepare risk assessment for children).

153 Annexure 1 COMMON QUESTIONS ABOUT VICTIMS OF TRAFFICKING AND CHILD LABOUR Q. Who is a child? Ans. A child is a person who has not completed 18 years of age. Q. I see a child being exploited at work. What can I do? Ans. Call the police. The police is mandated to take action against the employer who employs a child or a juvenile in any hazardous occupation, or keeps him/ her in bondage, or withholds his/ her earnings u/S. 26 Juvenile Justice Act, 2000. Also, Sec. 23 provides for punishment in case of cruelty to the child. The offences under both Bonded Labour Act and Juvenile Justice Act are cognizable offences. Call the labour department. They can act under the Child Labour (Prohibition and Regulation) Act, 1986 and impose a fine on the employer (Minimum fine of Rs. 10,000/-and a maximum fine of Rs. 20,000/-). Both Police and Labour Department can rescue a child labourer under Child Labour Act on orders of a magistrate. Call 1098, the Child Line telephone number, if available in your city. Best option: If you can, a complaint may be filed before a Sub Divisional Magistrate to rescue the child under the Bonded Labour Act. This would also enable the child to be rescued and also be statutorily rehabilitated. Under the Bonded Labour Act, the SDM may grant an immediate relief of Rs. 1000/- upon rescue and also issue a Release Certificate that would entitle the victim to get a rehabilitation package of Rs. 20,000/-. Ideally, the government can and should impose all these laws simultaneously. The rescue of the child is done under the Bonded Labour Act. Prosecution is done under the Sec. 16 of the Bonded Labour Act, provisions of IPC like Sec. 367, 372, 373, 374, Sec. 23, 26 of the JJ Act & Sec. 14 of the Child Labour Act. Immediately upon rescue, the child is taken to a shelter home under the JJ Act. The child is then repatriated in accordance with the JJ Act and the Bonded Labour Act. Q. The child is above 14 yrs. old and is allowed to work under the Child Labour (Prohibition and Regulation) Act. What do I do now? Ans. First, verify the nature and extent of work/ exploitation. In case of forced labour, under Bonded Labour Act, age is not a relevant factor. Moreover, the Juvenile Justice Act (Sec. 26) applies to any person under 18 yrs. of age. Ask employer how he has got the verification of age done. Is there a birth certificate or any other legal proof of age determination. In the absence of proof, the police has to refer the child for age determination. Q. The medical examination ascertains the age to be 16 yrs. I think child is 12-13 yrs. What do I do now? Ans. Doctor says that age is 16 yrs but it is approximate calculation. There is a margin of 2 yrs. in the bone density ossification test normally conducted for age determination. Thus, presumption has to be in favour of the victim. Even if there is a dispute as to age, if the victim is not getting minimum wages (e.g., Rs.133/- per day in Delhi for unskilled worker), the police can use the provisions of the Bonded Labour Act. Under Supreme Court guidelines in PUDR vs. Union of India, (1982) 3 SCC 235, paragraphs 259-260, “...Where a person provides labour or service to

154 another for remuneration which is less than minimum wage, the labour or service provided by him clearly falls within the scope and ambit of the word ‘forced labour’...” as described in Article 23 of the Indian Constitution. The onus is on the employer who has to rebut the presumption. In case of a difference of opinion, the child may once again be referred to a Medical Board for a re-examination. Q. The employer says that the child came to me asking for work. S/he has consented to work for the wages that s/he has been offered. Ans. The child (in law) does not have the right of contract. Thus, a child’s consent is no consent. Moreover, even if the parents have consented, such consent is a misinformed consent where the gullible parents are also not aware of their rights. If the wages are below the minimum wages, the provisions of the Bonded Labour Act may be invoked and the employer should prove the non-existence of bondage. Q. The employer says that the parents of this child are very poor. They asked me to take care of the child. The child is just like our own child and we take full care of the child. S/he will starve if we don’t keep the child. Ans. Ask if they really feel so much for the poor parents, why don’t they keep the parent as a worker or pay the child the required minimum wages, send the child (working) to the same school as their own child, or let her/ him use the same bathrooms. A child labourer is rarely given minimum wages and are kept only for the benefit of the employer as the child is the cheapest source of labour and may be exploited easily. It is a myth that children are engaged in child labour because they are from poor families. Looking from a different perspective, figures available from various sources indicate that India may have around 6 crore child labourers. Say, each child labourer earns Rs. 10/- per day, i.e. a total of Rs. 60 crore is earned by children every day. Instead, consider a scenario where the 6 crore children are replaced by unemployed adults who are paid minimum wages. The same earning shoots up by 6-8 times thus increasing the total money in circulation, the total purchasing power of families by 6-8 times, thereby eliminating poverty of the families. Not only would there be employment for adults, but the children would be able to study and thus lead to both literacy and reduction of poverty. Q. What if the employer says, ‘We pay full wages to the child’? Ans. Ask the employer for pay receipts of the payments made to the child. Ask if the child is going to school apart from working (in rare cases where children are in non-hazardous conditions of work). Ask if child has sent money (or if the employer has sent money) home, ask for the money order receipts. Ask for bank account details. Ask tough questions. Q. The child labourer has been rescued. What happens now? Ans. The child’s statement is recorded by the police and SDM. Care should be taken that the statement is not taken in the presence of the employer as children are often quite shaken up by the proceedings and may get intimidated or threatened by the employer’s presence. Care should also be taken that the child does not spend a lot of time in the Police Station. Now, the child may be handed over directly to the parents (if they are present) or repatriated back to the parents as soon as possible. In the meantime the rescued child could be sent to a Government/ NGO run Shelter Home.

155 Q. The parents of the child are not present. What do I do now? Ans. If the rescue has been done by the SDM, s/he has the power to order the child’s custody to any person or institution until s/he may be repatriated back to the parents. Alternatively, the child may be produced before a member of the Child Welfare Committee for being placed in safe custody or otherwise, when the Committee is not in session. Q. What happens if the child’s parents’ whereabouts are not known? Ans. The child may be ordered to be sent to a Shelter Home for urgent support till the parents are found. Restoration of the child has to be the primary objective. The Child Welfare Committee may order the child to be restored to a guardian or even a fit person or fit institution as it deems. Q. Sometimes the children have been kidnapped or moved after allurements to them or their families but the kidnappers are not the employers. Can something be done about that? Ans. These children have been victimised by the crime of trafficking and the traffickers need to be punished as much as the employer. The various provisions of law that may be applied have been provided in Annexure 2. Q. What is the process of rehabilitation of the child labourer? Ans. Rehabilitation may be statutory through monetary compensation or organization based. Immediately upon rescue, if it has been done under the Bonded Labour Act, a Release Certificate may be issued and an interim relief of Rs. 1000/- may be given. The Release Certificate issued by the DM/ SDM shall entitle the child (or even adult) victim to a rehabilitation package of Rs. 20,000/-. The SDM shall write to the Resident Commissioner of the state to which the child belongs for the safe repatriation of the child or shall order a law enforcement authority to repatriate the child back to the parents safely. If rescue has been done under Juvenile Justice Act or any other legal provision, the rescued child may be sent to a Shelter Home and/ or to Children’s Home in accordance with the JJ Act for the reception of child in need of care and protection during the pendency of any inquiry and subsequently for their care, treatment, education, training, development and rehabilitation. The rehabilitation and social reintegration of a child shall begin during the stay of the child in a Children’s Home or Special Home and the rehabilitation and social reintegration of children shall be carried out alternatively by (i) adoption, (ii) foster care, (iii) sponsorship or (iv) sending the child to an after-care organization. However, the child shall remain in the Children’s Home till s/he attains the age of 18 or till suitable rehabilitation is found. Q. The child may be rescued and repatriated, but how can a child be reintegrated back in mainstream society? Ans. Once a rescued child from worst forms of child labour has been repatriated back and is reunited with her/ his parents, efforts may be made by parents/ NGOs, government agencies to reintegrate the child in mainstream society through formal education. This may be done through combination of policies and efforts available under, e.g.. The National Policy on Child Labour - 1987, NCLP - 1994 (National Child Labour Project), the INDUS Child Labour Project1, Sarva Shiksha Abhiyan, National Charter for Children 2003, National Plan of Action 2005, etc. or directly in formal schooling, if possible.

1 The INDUS Child Labour Project is implemented by the International Labour Organization, which is funded jointly by the United States Department of Labour and the Government of India.

156 Annexure 2 LEGAL PROVISIONS WITH RESPECT TO TRAFFICKING FOR FORCED LABOUR

THE INDIAN PENAL CODE, 1860 Section Provision Punishment Classification Explanation of Offences 340 Wrongful To limit a person from confinement movement by restricting him at one place 342 Punishment for Imprisonment for a term Bailable, wrongful of up to 1 year, a fine of Cognizable confinement Rs. 1000 or both 343 Wrongful Imprisonment for a term confinement for 3 of up to 2 years, a fine or more days or both 344 Wrongful Imprisonment for a term confinement for 10 of up to 3 years, and a fine or more days 346 Wrongful Imprisonment for a term Bailable, Confine a confinement of up to 2 years and any Cognizable person in a way in secret punishment he is liable that anyone to for such wrongful interested can confinement not discover 361 Kidnapping from Taking or enticing of a Bailable, Children are lawful guardianship minor (male under 16 years Cognizable made false or female under 18 years) promises as allurement 362 Abduction Compel by force or by Bailable, Living and deceitful means, to take a Cognizable working person to another place is conditions are abduction never as promised 366 Kidnapping, Imprisonment for a term of Non Bailable, Kidnap or abducting or up to 10 years and shall Cognizable abduct a inducing woman to also be liable to a fine woman to compel her marriage, marry or to etc. force or seduce to illicit intercourse

157 Section Provision Punishment Classification Explanation of Offences 366A Procuration of Imprisonment for a term of Non Bailable, Procure a girl of minor girl up to 10 years and shall Cognizable under 18 years also be liable to a fine to force or seduce to illicit intercourse 366B Importation of girl Imprisonment for a term of Non Bailable, Import a girl from foreign country up to 10 years and shall Cognizable into India from also be liable to a fine other country to force or seduce to illicit intercourse with another person 367 Kidnapping or Kidnap or abducts in order Non Bailable, In trafficking, all abducting in order to to cause grievous hurt or Cognizable movement is subject person to slavery or unnatural lust of either through grievous hurt, a person; Imprisonment for force or deceit. slavery, etc a term of up to 10 years The victim and fine almost never gets minimum wage, thus may be termed forced labour (PUDR case) 368 Wrongfully Same punishment as for Non Bailable, Concealing the concealing or kidnapping or abduction Cognizable information keeping in about a confinement, kidnapped or kidnapped or abducted abducted person person is punishable 370 Buying or disposing Imprisonment for a term Bailable, To import, of any person as a of up to 7 years and shall Non-Cognizable export, remove, slave also be liable to a fine buy, sell or dispose of any person as a slave, or accept, receive or detain against his will any person as a slave

158 Section Provision Punishment Classification Explanation of Offences 371 Habitual dealing in Imprisonment for a term of Non Bailable, Habitually Slaves up to 10 years and shall Cognizable import, export, also be liable to a fine remove, buy, sell, traffic or deal in slaves 372 Selling minor for Imprisonment for a term Non Bailable, Sells, lets to hire purposes of of up to 10 years and shall Cognizable a person under prostitution, etc. also be liable to a fine 18 years for prostitution or illicit intercourse or for unlawful or immoral purpose 373 Buying minor for Imprisonment for a term Non Bailable, Buys, hires or purposes of of up to 10 years and shall Cognizable obtains prostitution, etc. also be liable to a fine possession of a person under 18 years for prostitution or illicit intercourse or for unlawful or immoral purpose 376 Punishment for rape Rape of a woman not his Non Bailable, wife - imprisonment for Cognizable Min-7 years, Max- life term; or up to 10 years and a fine 377 Unnatural offences Imprisonment for life term; Non Bailable, Voluntarily have or for a term of 10 years Cognizable carnal and shall also be liable to intercourse a fine against the order of nature with a man, woman or animal 374 Unlawful compulsory Unlawfully compel a Bailable, labour person to labour against Cognizable the will of the person; imprisonment of a max of 1 year or fine or both

159 Section Provision Punishment Classification Explanation of Offences 406 Punishment for Dishonestly Non Bailable, A trafficked criminal breach of misappropriating or Cognizable person very trust converting to one's own often entrusts use any entrusted property; property to the imprisonment for a term of employer or up to three years or with trafficker fine or with both 417 Punishment for Deceiving any person; Bailable, In trafficking, Cheating imprisonment for a term of Non Cognizable often there is up to one year or with fine deceit, or with both dishonest concealment of facts, which constitutes cheating, such that it causes damage or harm to a person in body mind, reputation or property 506 Punishment for Imprisonment for a term Bailable, Criminal criminal intimidation which may extend to Non-Cognizable intimidation is 2 years, or fine or with both to threaten a person with injury to his person, reputation or property or to the person or property of whom the person is interested, with the intent to cause alarm

160 THE BONDED LABOUR SYSTEM (ABOLITION) ACT, 1976 Section Provision Punishment Classification of Offences 2 Definition of bonded labour- “bonded labour” is when a person pledges to offer his or his family's services in lieu of the debt that he has taken from the debtor 16 - 23 Penal provisions Bailable, Cognizable 16 Punishment for enforcement Imprisonment for a term which may of bonded labour extend up to 3 years and a fine of up to Rs. 2000/- 17 Punishment for advancement Imprisonment for a term which may of bonded debt extend up to 3 years and a fine of up to Rs. 2000/- 18 Punishment for extracting Imprisonment for a term of up to bonded labour under the 3 years and a fine of up to Rs. 2000/- bonded labour system 19 Punishment for omission or Imprisonment for a term of up to failure to restore possession 1 year or fine of up to Rs.1000 or both of property to bonded labourers 20 Abetment to be an offence Whoever abets any of the punishable offences in this act is liable for the same punishment 23 Offences by companies Where an offence is committed by a company, the person in charge will be guilty of offence

THE CHILD LABOUR (PROHIBITION AND REGULATION) ACT, 1986 Section Provision Punishment Classification of Offences 3 Prohibits the employment of children in certain occupations and processes set forth in Part A and Part B respectively 14 Employing a child or Imprisonment: Min-3 months, Bailable, permitting any child to work Max-1 year; Fine: Min- Rs. 10,000, Non-cognizable in contravention of provisions Max- Rs. 20,000. For repeated of Section 3 offence, imprisonment of at least 6 months and max of 2 years

161 THE JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT, 2000 Section Provision Punishment Classification of Offences 23 Punishment for cruelty to a Imprisonment up to 6 months or Cognizable juvenile or child fine or both 24 Employment of juvenile or Imprisonment for a term of maximum Cognizable child for begging 3 years and also fine 26 Exploitation of a juvenile or Imprisonment for a term of maximum Cognizable child employee 3 years and also fine

THE INTERSTATE MIGRANT WORKMEN (REGULATION OF EMPLOYMENT AND CONDITIONS OF SERVICE) ACT, 1979 Section Provision Punishment Classification of Offences 2 (e) Definition of an “interstate migrant workman” - Any person who is recruited by or through a contractor in one State under an agreement or other arrangement for employment in an establishment in another State whether with or without the knowledge of the principal employer 4 Registration of certain Non Cognizable establishments employing 5 or more workmen 6 Prohibition against Non Cognizable employment of inter-State migrant workmen without registration 25 Contravention of provisions Imprisonment of up to 1 year or Non Cognizable regarding employment of fine of Rs. 1,000/- or both inter-State migrant workmen

REMEMBER THIS LIST IS NOT EXHAUSTIVE - USE LAWS RELATING TO: Criminal conspiracy, Confiscation/ seizure of property, Extradition International cooperation mechanisms, and as many as possible

162 Annexure 3

SCREENING TOOL TO HELP IDENTIFY A PO1TENTIAL VICTIM OF HUMAN TRAFFICKING The questions set out below are merely guidelines. There is no substitute for the judgement and intuition of the interviewer in determining whether an individual is a victim of trafficking. The critical concepts to be discerned are those of exploitation and loss or severe limitation of liberty. • Collaborative Materials: In relation to all key points, ask if there are any witnesses; police; any documentation or travel tickets; reports of any medical treatment provided in respect of injuries prior to referral; documents showing victim acting in a nominee role (i.e. beneficial owner is really the trafficker); copies of bogus employment contracts or copies of the original advertisement; materials produced by the victim during exploitation or diary entries, letters, etc. written by the victim. • None of the answers to any of the questions will on their own resolve the issue. • They must all be considered collectively together with the indicators highlighted above. A. General Information Victim’s name, age, nationality, professional and educational background B. Recruitment 1. What is the victim’s native place? 2. What location was the victim last residing in? 3. How long was the victim residing at that location? 4. How old was the victim when he/ she left the native community? 5. Do members of the family know the victim’s whereabouts? 6. Was the victim forcibly transported to another location in his/her native place? If yes, how? 7. Who recruited the victim? 8. What was the purpose of the recruitment? 9. Was initial contact with recruiter voluntary or not? 10. If not, was the victim forcibly transported out of his/her place of origin? If so, how? C. Use of Force or Threat 11. If force was used in the recruitment please respond to the following questions: 12. Was the victim abducted or kidnapped? 13. Was the victim threatened with harm to his or her self or family? 14. Was the victim sold? By whom? 15. What were the circumstances of the forcible removal? 16. Who initiated the contact? How? 17. What was the method of recruitment (e.g. by advertising, acquaintance, family, study, training, etc.)? D. Employment 18. If the recruitment was for employment, please answer the following questions: 19. What kind of work was offered to the victim or what activities did the victim believe she/he would be engaged in following arrival at the new location?

1 This screening tool has been adapted from Human Trafficking Reference Guide for Canadian Law Enforcement, 2005

163 20. How much money was promised to the victim and by whom? 21. Did the victim sign a contract? (e.g. an employment contract) 22. If so, what are the terms of the contract? Does the victim know them (e.g. was the contract in a language the victim understood)? 23. Does the victim possess a copy of the contract? 24. Was the victim coerced into signing the contract? How? 25. Was anyone paid a fee for recruiting the victim for work? E. Travel and Identity Documents 26. Does the person have a passport? 27. If so, is it their own legitimate passport or is it a fraudulent passport? 28. How did they acquire this passport? 29. Was it provided to them by the trafficker? 30. What kind of employment authorization was promised to the victim and by whom? 31 Was the victim promised permanent residency upon arrival in India/ another state in India or after a certain period? By whom? F. Movement 32. Was the victim coerced into moving? How? 33. If any travel costs were incurred before departure, who paid them? 34. Did the victim pay money in advance or agree to pay the costs or remainder of costs upon arrival? 35. Did the victim sign a loan contract? If so, does the victim have a copy? 36. What means of transport was used? 37. Was the vehicle stopped at any check-point? 38. Was the vehicle examined by check-point officials? 39. Did the victim change handlers during migration? 40. Was a fee paid for organizing the victim’s transportation? By whom and to whom? 41. Was the victim threatened, sexually or physically assaulted or confined during transportation? G. Working Conditions (Exploitation) 42. Does the victim believe that she/ he is subject to some form of debt bondage? (Debt bondage refers to the status of a debtor arising from a pledge by the debtor for his/ her services or of those of a person under his control as a security for debt) 43. Does the victim believe that she/ he owes money to recruiters/ transporters/ exploiters? 44. Was the victim paid and at what rate? 45. Who has the possession of these earnings now? 46. How may hours a day did the victim work? 47. Was the victim allowed any time off? Allowed to rest if sick? H. Restriction of Freedom 48. Was the victim unable to quit working for the employer and get a job somewhere else? 49. Was the victim’s movement restricted? How? (e.g. did the victim have a key of the house)

164 50. Was the victim allowed to communicate with family members? Other workers? 51. Was the victim living and working at the same place? 52. Was the victim chaperoned, guarded, incarcerated? 53. When did the victim realize that he/ she was not free? I. Living Conditions 54. What were the living conditions of the victim? (e.g. no. of rooms, no. of people living together) 55. Did the victim have friends? 56. Did the victim have money? Could the victim buy his/ her own belongings? J. Physical Coercion 57. Was the victim subject to physical assaults or torture? (pinching, hitting, slapping, punching, kicking, shaking, burning, branding, chained, etc.) 58. Was the victim subject to sexual assaults? (forced sexual contact, rape, forced prostitution etc.) 59. Was the victim forcibly confined or isolated? 60. Was the victim denied essential medical care? 61. Was the victim denied food/ clothes and other basic necessities including ability to maintain basic hygiene? K. Psychological Coercion 62. Was the victim threatened with violence, harm or retaliation against victim or the victim’s family members (or friends)? 63. Were there threats to report the victim to authorities? 64. Did the victim view or hear others being physically or sexually assaulted? 65. Was the victim deceived regarding the employment, activities or basic conditions of his or her employment? 66. Was the victim subject to verbal abuse, name calling, degrading remarks about victim’s ethnicity/social group? 67. Was the victim photographed and filmed while being physically or sexually assaulted, humiliated or degraded? 68. If so, did the traffickers threaten to use the images against the victim? 69. Was the victim threatened with confinement or isolation? L. Risk Assessment 70. Do the traffickers know the victim’s home/ work address or contact details? 71. Is the victim married? Does the victim have any children? 72. Do the traffickers have any details about the victim’s family or loved ones? 73. Do the traffickers claim to know these things?

165 Annexure 4 RELEASE CERTIFICATE Sl. No...... Court of the Deputy Commissioner/SDM ...... (Under Section 6, 7, 8 and 9 of the Bonded Labour System (Abolition) Act, 1976) ORDER On verification under the provisions of the Bonded Labour System (Aboilition) Act 1976 Shri...... aged about...... years S/o Shri...... caste...... R/o Village...... P.S...... Tehsil...... District...... State...... is certified as a bonded labour. According to the statement of aforesaid Shri...... S/o ...... dated...... a sum of Rs...... was taken as advance at the rate of...... % annual interest/ other financial obligations of the employer Shri...... R/o ...... Delhi, the aforesaid bonded labour was forced to work in similar manner in lieu of the advance/ financial obligation by him. Besides providing him his labour at nominal wage, he is not free to move or work elsewhere. As such under the provisions of the Bonded Labour System (Abolition) Act 1976, power bestowed upon me, Shri...... aged...... S/o Shri...... R/o village...... P.S...... PO...... Tehsil...... Dist...... State...... is being released from bondage and all the debts are declared to be extinguished. The said money lender/employer is being informed herewith that he is no more entitled to get back any of the aforesaid debt/financial obligation from the above mentioned released bonded labour Shri...... S/o Shri...... R/o village...... The aforesaid employer/money lender should not conspire for realisation of the aforesaid debt / financial obligations and force him for bonded labour or displace him from the house provided to him during the course of employment and return all his belongings to him immediately kept as mortgaged by the money lender / employer in its original form, otherwise, he will be liable for punishment under the provisions of the Bonded Labour System (Abolition) Act 1976, Sahukari Act 1976 and Minimum Wage Act 1948.

Releasing Officer / SDM ...... Delhi

Copy for information and necessary action to: 1. Released Bonded Labour Shri ...... 2. Employer / Money lender Shri ...... 3. D.M...... 4. SHO ...... 5. General Secretary, BBA (NGO), L-6, Kalkaji, ND-19

Releasing Officer / SDM ...... Delhi

166 Standard Operating Procedure to handle Trafficking of Children for Child Labour - measures to be taken for rescue of trafficked child labourers' and action against the traffickers/employers 2013

(Ministry of Home Affairs, Govt. of India) 168 169 170 171 172 173 174 175 Delhi Commission for Protection of Child Rights Govt. of NCT of Delhi 5th Floor, ISBT Building, Kashmiri Gate, Delhi-110 006 www.dcpcr.delhi.gov.in