Child trafficking for Forced labour
WHAT IS TRAFFICKING? “Trafficking in person” shall mean 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.1 Constitution of India, Article 23 : “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 Source: 6.Optional Protocol to United Nation Convention On Transnational Organised Crime, ratified by India in May, 2011 7.Bachpan Bachao Andolan vs Union of India and others (2011) 5 SCC 1
WHAT IS TRAFFICKING? According to Indian Penal Code, Section 370: Trafficking is
WHAT IS FORCED LABOUR According to Indian Penal Code, Section 370:
“Any work or service which is exacted from a person under the menace of penalty and for which the person has not offered himself/ herself voluntarily.” - ILO Convention 29
CHILD LABOUR/ TRAFFICKING WHY? • Most profitable criminal activity. • In India, from child labour trafficking, illegal profits generated up to 1.2 lakh crore annually. • From Government figures an estimated 100 crore (1 billion Rs.) generated daily. • ILO estimates global profits from trafficking at 32 billion USD.
HIGH PROFIT – LOW RISK! * Source: Capital Corruption: Child Labour in India (2011) ** Source:ILO action against trafficking in human beings (2008)
DIMENSIONS OF TRAFFICKING Forced/ Bonded Labour Sexual Exploitation
Child Labour
Recruitment of Children for Armed Conflict
Organ Trade
Trafficking
Missing Children
Begging Forced Marriage
SITUATION IN TAMIL NADU Trafficked vs missing children •No. of missing children – 2828 (2011) •No. of FIRs registered – 576 •No. of STILL untraced children – 847
Trafficked vs Child Labour •No. of children rescued from child labour – 5127 (2011- 2012) •Rehabilitation amount due – Rs. 10,25,40,000 •No. of child labour inspections - 1232050 (1997- 2007) •No. of child labour prosecutions – 4165 (1997- 2007)
ENACTMENTS IN INDIA •
Indian Penal Code, 1860
•
Protection of Children from Sexual Offences Act, 2012
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Juvenile Justice (Care and Protection) Act, 2000
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Bonded Labour System (Abolition) Act, 1976
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Immoral Traffic (Prevention) Act,1956
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Child Labour(Prohibition and Regulation) Act, 1986
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Other legislations
RESPONSE TO TRAFFICKING: WHY? • Biggest Criminal Activity. • Large Crime Networks. • Ongoing Continuous Crime. • Large number of Victims. • Illegal Profits fueling many other Crimes.
Indian Penal Code Section
Section
Provision
Cognizable/ NonCognizable
To limit a person from movement by restricting him at one place
Wrongful confinement
342
Punishment for wrongful confinement
Imprisonment for a term of up to 1 year, a fine of Rs. 1000 or both
343
Wrongful confinement Imprisonment for a for 3 or more term of up to 2 years, a Bailable, Cognizable days fine or both
344
Wrongful confinement for 10 or more days
Imprisonment for a term of up to 3 years, and a fine
Wrongful confinement in secret
Imprisonment for a term of up to 2 years and any punishment he is liable to for such wrongful confinement
340
346
Explanation
Bailable, Cognizable
Bailable, Cognizable
Bailable, Cognizable
Confine a person in a way that anyone interested can not discover
Section
361
Section
Kidnapping from lawful guardianship
362
Abduction
365
Kidnapping/Ab duction with intention of secret or wrongful confinement
366A
Procuration of minor girl
Provision
Cognizable/ Non-Cognizable
Explanation
Taking or enticing of a minor (male under 16 years or female under 18 years)
children are made false promises as allurement
Compel by force or by deceitful means, to take a person to another place is abduction
living and working conditions are never as promised
Kidnap or abduction with intention that such person be secretly or wrongfully confined
Non Bailable, Cognizable
In most cases of labour trafficking, children are kept in secret and not allowed to move
Non Bailable, Cognizable
Procure a girl of under 18 years to force or seduce to illicit intercourse
Imprisonment for a term of up to 10 years and shall also be liable to a fine
Section
366B
Section
Cognizable/ NonCognizable
Explanation
Non Bailable, Cognizable
Import a girl into India from other country to force or seduce to illicit intercourse with another person
Kidnap or abducts in order to cause grievous hurt or slavery or unnatural lust of a person; Imprisoned for a term of up Non-bailable, cognizable to 10 years and fine
In trafficking, all movement is either through force or deceit. The victim almost never gets minimum wage, thus maybe termed forced labour (PUDR case)
Same punishment as for kidnapping or abduction
Concealing the information about a kidnapped or abducted person is punishable
Provision
Importation of Imprisonment for a term of girl from foreign up to 10 years and shall country also be liable to a fine
367
Kidnapping or abducting in order to subject person to grievous hurt, slavery, etc
368
Wrongfully concealing or keeping in confinement, kidnapped or abducted person
Non-bailable, cognizable
Indian Penal Code Section
Cognizable/ NonCognizable
Provision
370 Trafficking
Explanation
(1) Whoever for the purpose of exploitation (a) recruits, (b) transports (c) harbours (d) transfers (e) receives a person or persons by First. Using threat Secondly, using force or any other form of coercion Thirdly, by abduction Fourthly, by practising fraud or deception or
Indian Penal Code Section
Cognizable/ NonCognizable
Provision Fifthly, by abuse of power
Sixthly, by inducement including the giving or receiving of payments or benefits in order tto achieve the consent of a person having control over the person recruited, transported, harboured , transferred or received
370 (2)
Explanation 1
Exploitation – any act of physical exploitation; any form of sexual exploitation; slavery or practices similar to slavery; servitude; forced removal of organs
Explanation 2
Consent of the Victim is immaterial in determining an offence of trafficking
Punishment for offence of trafficking
Rigorous imprisonment of seven years , extendable to ten years and liable to fine
Explanation
NonBailable and Cognizable
Indian Penal Code Section
Provision
370 (3)
Punishment for the offence of Trafficking of more than one person
370 (4)
Punishment for the offence involving trafficking of a minor
Cognizable / NonCognizable Rigorous imprisonment of ten years which maybe extended to life and shall also be liable to fine Rigorous imprisonment of ten years which maybe extended to life and shall also be liable to fine
370 (5)
Punishment for the offence involving trafficking of more than one minor
Rigorous imprisonment of fourteen years which maybe extended to life imprisonment and shall also be liable to fine
370 (6)
Punishment for a person convicted of offence of trafficking of a minor in more than one occasion
Imprisonment for life, which shall mean imprisonment for the remainder of the person’s natural life and shall also be liable to fine
NonBailable and Cognizable NonBailable and Cognizable NonBailable and Cognizable NonBailable and Cognizable
Explanation
Indian Penal Code Section
Provision
Expansion
370
(7) Punishment for public servant or a police officer involved in trafficking of any person
Imprisonment for life, which shall mean imprisonment for the remainder of the person’s natural life and shall also be liable to fine
370 A (1)
370 A (2)
Punishment for a person who engages a trafficked minor for sexual exploitation
Rigorous imprisonment for five years which may extend up to seven years and shall be liable to fine
Punishment for a person who engages a trafficked person for sexual exploitation
Rigorous imprisonment for three years which may extend up to five years and shall be liable to fine
Cognizable / NonCognizable NonBailable and Cognizable NonBailable and Cognizable
NonBailable and Cognizable
Explanation
Indian Penal Code Section
Section
Habitual dealing in 371 slaves
Provision
Imprisonment for a term of up to 10 years and shall also be liable to a fine
Imprisonment for a Selling minor term of up to 10 for purposes of years and shall also 372 prostitution, etc be liable to a fine
Imprisonment for a Buying minor term of up to 10 for purposes of years and shall also 373 prostitution, etc be liable to a fine
Cognizable/ NonCognizable
Explanation
Non Bailable, Cognizable
Habitually import, export, remove, buy, sell, traffic or deal in slaves
Non Bailable, Cognizable
sells, lets to hire a person under 18 years for prostitution or illicit intercourse for unlawful or immoral purpose
Non Bailable, Cognizable
buys, hires or obtains possession of a person under 18 years for prostitution or illicit intercourse for unlawful or immoral purpose
Indian Penal Code Section
Section
Unlawful compulsory 374 labour
Punishment for criminal intimidation 506 34,120B, 321, 323,509, etc.
Provision
Cognizable/ NonCognizable
Explanation
Unlawfully compel a person to labour against the will of the person; imprisonment of a max Bailable, of 1 year or fine or both Cognizable
A term which may extend to 2 years, or fine or with both
Criminal intimidation is to threatens 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
Noncognizable, bailable
Bonded Labour (Abolition) Act, 1976 Section
Provision
Cognizable/ NonCognizable
Section 2 defines bonded labour “is when a person pledges to offer his or his family’s service in lieu of the debt that he has taken from the doctor Section 16- 23 for punishmnet Sec 16- Punishment of enforcement of bondedlabour
Imprisonment for a term which may extend up to 3 years and fine of up to Rs. 2000
Cognizable and bailable
Sec 17- Punishment of advancement of bonded debt
Imprisonment for a term which may extend up to 3 years and fine of up to Rs. 2000
Cognizable and bailable
Sec 18- punishment for extracting bonded labour under the bonded labour system
Imprisonment for a term ofup to 3 years and fine of up to Rs. 2000
Explanation
Juvenile Justice Act, 2000
Section
Provision
Cognizable/ Non-Cognizable
Explanation
Sec 23- Punishment for cruelty to a juvenile or child
Whoever having the charge over a child, assaults, abandons, neglects or procures him/her to be assaulted, abandoned or neglected so as to cause physical or mental suffering will be punished for up to 6 months or fine or both
Cognizable
Sec 26- Exploitation of juvenile or child employee
Procure a juvenile or the child for hazardous work, keeps him in bondage and withholds the child's earnings or uses them for his own purpose is liable for imprisonment up to 3 years and also a fine
Cognizable
Child Labour (Prohibition and Regulation) Act, 1986 Section
Cognizable/ NonCognizable
Provision
Section 3 prohibits the employment of children in certain occupations and processes set forth in Part A and Part B respectively
Explanation
Noncognizable, bailable
Imprisonment: Min-3 months, Max-1 year; Fine: Min- Rs. 10,000, Max- Rs. 20,000
Section 14
For repeat offence, imprisonment of at least 6 months and max of 2 years
LAWS THROUGH SUPREME COURT JUDGEMENTS Bachpan Bachao Andolan vs Union of India and Others (2011) 5 SCC 1
•
Defined the crime of “Trafficking” for the first time in India
•
Prohibited employment of trafficked children in circuses
•
Lead to India ratifying the Palermo Protocol, 2000 (The Protocol to the Convention Against Transnational Organised Crime) on the 5th of May, 2012.
•
Detailed guidelines brought out for the enforcement of the Juvenile Justice (Care and Protection) Act, 2000.
LAWS THROUGH SUPREME COURT JUDGEMENTS Bachpan Bachao Andolan vs Union of India and Others(10th May, 2011) •
Defined Missing Children as, “a person below eighteen years of age, whose whereabouts are not known to the parents, legal guardians and any other person, who may be legally entrusted with the custody of the child, whatever may be the circumstances/causes of disappearance.”
•
In all cases of missing children compulsory registration of FIR was ordered under the presumption of the crime of kidnapping or trafficking unless proven otherwise from investigation. Even after recovery of the child, police would investigate the case to look into the possibility of any linkage with trafficking.
•
Computerized Network to be developed and linked to all districts which will be a data base for missing children.
LAWS THROUGH SUPREME COURT JUDGEMENTS Bachpan Bachao Andolan vs Union of India and Others(10th May, 2011) •
•
All cases of crimes against children to be compulsorily investigated, either under Section 154 or 155, after getting the required permission from the magistrate. No child may be put in a children’s home/ shelter home without producing them before a child welfare committee and proper procedures as per the Juveline Justice Act.
LAWS THROUGH SUPREME COURT JUDGEMENTS PUDR vs Union of India 1982 3 SCC 235
•
Defined of ‘force’ and ‘forced labour
“Any factor that deprives a person of alternatives and compels him to choose a particular course of action is force” “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”
LAWS THROUGH SUPREME COURT JUDGEMENTS 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…” “…. bonded labourers must be identified and released and on release, they must be suitably rehabilitated...”
LAWS THROUGH SUPREME COURT JUDGEMENTS Adoption and Trafficking: Lakshmikant Pande vs. Union Of India To eliminate all together the possibility of profiteering and trafficking in children
Child Labour M.C.Mehta vs. State of Tamil Nadu (AIR 1997 SC 699) “...The inspectors appointed under section 17 would see that for each child employed in violation of the provisions of the Act, the concerned employer pays Rs. 20,000 which sum could be deposited in a fund to be taken as Child labour Rehabilitation-cum-Welfare Fund.…”
DELHI HIGH COURT ON INTERAGENCY COLLABORATION AND COMPREHENSIVE LEGAL ACTION Save the Childhood Foundation vs. Union of India and others (Delhi High Court 15th July, 2009 ) Action Plan on Elimination of Child Labour by NCPCR (further adapted by Delhi, Uttarakhand, Rajasthan, Bihar, Punjab, Karnataka, etc.) All law enforcement agencies must work together, with specific roles and responsibilities assigned to Police, Labour Department, Department of Social Welfare, M.C.D, Department of Health, Department of Education, etc. • Recovery of fine of Rs. 20,000 as arrear of land revenue immediately and DOES NOT REQUIRE CONVICTION • Compulsory registration of cases in all child labour rescues • Cancellation and suspension of license. •
HIGH COURT OF DELHI ON ECONOMICS OF TRAFFICKING Save the Childhood Foundation vs. Union of India and others (Delhi High Court 27th May, 2012 )
“….Notwithstanding any other law being in force, if an establishment
is
found
employing
child
labour,
the
establishment may be sealed and or its registration or license issued by any authority, to conduct business, may be suspended or cancelled till such time that it pays all the dies including Rs. 20,000 as rehabilitation compensation in accordance with the judgment of Hon’ble Supreme Court of India in M.C Mehta Vs. State of Tamil Nadu and other dues including minimum wags, in respect of the children so rescued….”]
HIGH COURT OF DELHI ON ECONOMICS OF TRAFFICKING Save the Childhood Foundation vs. Union of India and others
Impact – 15th July , 2009 – 31st May, 2013 CHILDREN RESCUED – 3734 Traffickers arrested – over 500 Fines recovered from Traffickers/ employers – over 3,80,00,000 Buildings/ establishments sealed- over 250
INSTITUTIONAL RESPONSE ON CHILD PROTECTION
VICTIM CENTRIC
INSTITUTIONALISATION OF RESPONSE
COMPREHENSIVE POLICIES FOR RESCUE AND REHABILITAITON
CAPACITY BUILDING AND EMPOWERMENT TO CREATE KNOWLEDGE BASE
COMBATING CHILD ABUSE Demand and supply chain SOURCE Awareness Generation:
ROU T
E
Sensitisation and Capacity Building of Law Enforcement Agencies and NGOs: Case Study: July, 2012: On specific intelligence gathered from source areas, the Delhi Police Crime Branch AHTU organised a midnight rescue operation resulting in the rescue of 42 children and arrest of 21 traffickers.
MARKET Regular Rescue Operations for Children in exploitation: In Delhi alone more than 323 operations from 2009 till May, 2013
PROCESS OF RESCUE (VICTIM CENTRIC) IDENTIFICATION Follow up
RESCUE FROM FORCED LABOUR/SEXUAL EXPLOITATION (SOP to be followed) MEDICAL CARE & PSYCHOLOGICAL COUNSELLING
SHELTER HOMES/CHILDREN’ HOMES (Further Care and Counselling till Repatriation) Home Verification
REPATRIATION Follow up
COMPREHENSIVE REHABILITATION EDUCATIONAL
ECONOMIC
PSYCHOLOGICAL
REHABILITATION Statutory Response: Bonded Labour System (Abolition) Act, 1976 Financial Rehabilitation: Compensation under, M.C. Mehta Guidelines Section 357A of the Code of Criminal Procedure, 1973 Educational Rehabilitation: National Child Labour Policy, 1987 Fundamental Right to Free and Compulsory Education (Article 21 A, Constitution of India)
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INSTITUTIONALIZATION OF RESPONSE ANTI HUMAN TRAFFICKING UNIT (AHTU) & Crime Bureau of Investigation AHTU
ACESS TO LEGAL AID: •National Legal Services Authority •All India Legal Aids Cell On Child Rights •State Legal Services Authority •District Legal Services Authority
COMMISSIONS AT THE CENTRE: •National Human Rights Commission •National Commission for Protection of Child Rights •National Commission on Women
OTHER STATE AGENCIES: •Child Welfare Committee (District) •Special Juvenile Police Units (All Police Stations)
POLICIES •
National Child Labour Policy , 1987
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National Plan of Action to Combat Trafficking and Commercial Sexual Exploitation of Women and Children, 1998
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National Policy for the Empowerment of Women, 2001
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National Plan of Action for Children, 2004
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Integrated National Plan of Action to Prevent and Combat Trafficking of Human Beings.
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National Policy on Children, 2013
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Prevention through Right of Children to Free and Compulsory Education Act, 2009
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And Others <
CAPACITY BUILDING Regular Training by AHTU •Training of Trainers •Training of law enforcement personnel •Judiciary •Public Prosecutors Regular issue of Advisories by the Concerned Ministry of Home Affairs
CHALLENGES & GAPS • Enforcement of law • National Policy on Rehabilitation • Inter Agency Protocol for – Cross Border Trafficking – Intra State Trafficking across different State Borders • Protocol on Repatriation and Rehabilitation of Victims And Prosecution of Offenders
WAY FORWARD PREVENTION •
•
THROUGH LEGAL DETERRENT – STRICT ENFORCEMENT OF LAW AND POLICIES THROUGH STATUTORY REHABILITATION
PROTECTION
REHABILITATION
• PROTECTING VICTIM DURING AND AFTER RESCUE
•
STATUTORY AS WELL AS CENTRE BASED REHABILITATION
• DURING TRIAL – TO PREVENT VICTIMS/ WITNESS FROM GIVING INCORRECT STATEMENTS IN FEAR/ DURESS/ COERCION
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ECONOMIC REHABILITATION THROUGH FINES, JOBS, COMPENSATION, ETC.
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ENSURING VICTIM/ WITNESS PROTECTION
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EDUCATIONAL REHABILITATION
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ENSURING VICTIM FRIENDLY PROCESSES DURING TRIAL AND OTHER JUDICIAL PROCESSES
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CENTRALLY SPONSORED SCHEMES FOR REHABILITATION OF BONDED LABOURERS/ TRAFFICKING VICTIMS
Stop child trafficking
FOR MORE INFORMATION, CONTACT:
ALL INDIA LEGAL AID CELL ON CHILD RIGHTS Joint initiative of NATIONAL LEGAL SERVICES AUTHORITY, DELHI LEGAL SERVICES AUTHORITY & BACHPAN BACHAO ANDOLAN L-6, KALKAJI, NEW DELHI 110019 TEL: +91 11 4921 1111, +91 9811 63 7777 EMAIL:
[email protected],
[email protected]
