PUTTING JUSTICE FIRST

APPENDICES

PUTTING JUSTICE FIRST Legal strategies to combat human trafficking in India

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PUTTING JUSTICE FIRST | APPENDICES

APPENDIX 1: THE LEGAL FRAMEWORK This section provides a summary of legislation and case law relevant to human trafficking and forced labour cases in India. Luthra & Luthra Law Offices provided the analysis of the legislation and the case law pro bono. Comprehensive tables of legislation and relevant case law compiled by Luthra & Luthra are available upon request from The Freedom Fund.

SUMMARY OF LEGISLATION Constitution of India, 1950 Article 23 of the Constitution of India prohibits human trafficking and forced labour. In addition to this article, the Constitution includes a number of other relevant fundamental rights and provisions: • Article 21 protects the fundamental rights of life and liberty. • Article 21A provides that the state shall provide free and compulsory education to all children between the age of 6 -14 years. • Article 24 prohibits the employment of children below the age of 14 years, furthermore, there is a prohibition regarding employment of children in hazardous activities and mining. • Article 32 empowers an individual to invoke the writ jurisdiction of the Supreme Court for the enforcement of Fundamental Rights. Article 226 empowers the High Court to issue writs for the enforcement of rights. • Article 42 provides for just and humane conditions of work, and Article 43 imposes a duty upon the State to formulate suitable legislation for workers to provide a decent standard of life and full enjoyment of leisure and social and cultural opportunities. • Article 51(c): It is mandatory to respect obligations arising out of international law.

Indian Penal Code, 1860 In 2013, after the release of the Justice Verma Committee Report, the Criminal Law (Amendment) Act, 2013 was passed to reduce violence against women and children. This introduced the new Sections 370 and 370A into the Indian Penal Code, replacing the previous Section 370. These two sections are ground-breaking in the Indian anti-trafficking movement. Section 370 criminalises trafficking for the purpose of physical and sexual exploitation, and is based on the UN Palermo Protocol, whilst section 370 A criminalises those that sexually exploit a person that they believe may have been trafficked. Section 370: Trafficking in Persons 370. (1) Whoever, for the purpose of exploitation, (a) recruits, (b) transports, (c) harbours, (d) transfers, or (e) receives, a person or persons, by— First.— using threats, or Secondly.— using force, or any other form of coercion, or Thirdly.— by abduction, or Fourthly.— by practising fraud, or deception, or Fifthly.— by abuse of power, or Sixthly.— by inducement, including the giving or receiving of payments or benefits, in order to achieve the consent of any person having control over the person recruited, transported, harboured, transferred or received, commits the offence of trafficking.

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Explanation 1: The expression “exploitation” shall include any act of physical exploitation or any form of sexual exploitation, slavery or practices similar to slavery, servitude, or the forced removal of organs. Explanation 2: The consent of the victim is immaterial in determination of the offence of trafficking. There are also a range of subsections which set out different punishments depending on the offence and the age of the victim. There are higher punishments for: trafficking of children (under 18); repeated offenders or those that traffic more than one person at the same time; and public servants, including police officers, who are involved in trafficking. There are also a range of subsections which set out different punishments depending on the offence and the age of the victim. There are higher punishments for: trafficking of children (under 18); repeated offenders or those that traffic more than one person at the same time; and public servants, including police officers, who are involved in trafficking.

s370A – Exploitation of a Trafficked Person 1) Whoever, knowingly or having reason to believe that a minor has been trafficked, engages such minor for sexual exploitation in any manner, shall be punished with rigorous imprisonment for a term which shall not be less than five years, but which may extend to seven years, and shall also be liable to fine. (2) Whoever, knowingly by or having reason to believe that a person has been trafficked, engages such person for sexual exploitation in any manner, shall be punished with rigorous imprisonment for a term which shall not be less than three years, but which may extend to five years, and shall also be liable to fine.

s166A: (a new section with amendments in 2013): a police officer that does not record a complaint (First Information Report) in relation to a cognizable offence, including in relation to s370/370A, is liable to be imprisoned for up to 2 years and/or fined. Other relevant sections of the Indian Penal Code The Indian Penal Code includes many other offences that are relevant in trafficking and forced labour crimes, including wrongful restraint and confinement, kidnapping, torture, rape, unlawful compulsory labour, criminal intimidation and many other offences that might be relevant. For a more detailed list of relevant offences please see the comprehensive tables of legislation and case law

Immoral Traffic (Prevention) Act, 1956 The Immoral Traffic (Prevention) Act (“ITPA”) criminalises trafficking of women and girls for sexual exploitation. The Act does not criminalise trafficking for forced labour or the trafficking of males for sexual exploitation. The Act was introduced in 1956 and an amendment bill was prepared in 2006. The use of the ITPA by law enforcement officials has been strongly criticised, with studies demonstrating that police have focused on arresting and charging women, rather than brothel owners, managers and others involved in sex trafficking.

Summary of the ITPA:

• Sections 3 to 8 outlines offences under the Act including procuring, inducing or taking a person for the purpose of prostitution, detaining a person in a brothel with or without consent and managing a brothel. All offences are cognizable (serious and a special police officer can arrest a suspect without a warrant). A “minor” is defined as a person between 16 and 18 years of age.

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• Sections 7 and 8 criminalise seducing or soliciting for the purpose of prostitution. Law enforcement have been criticised for focusing on arresting women and girls under this section rather than arresting and charging brothel owners, managers and others involved in trafficking. The 2004 NHRC-UNIFEM-ISS study found that the vast majority of arrests and charges under the ITPA were against women for ‘soliciting’ rather than traffickers.

• Any police officer of the rank of Inspector or above can be appointed by the State government as a Special Police Officer empowered to deal with offences under this Act in a specified area. An advisory board which is a non- official may be associated with the special police officer to advise him on question(s) of general importance regarding the working of this Act. The Central Government may appoint trafficking officers (section 13).

• Arrest and search without warrant can be made only by a special officer or under his direction or guidance or subject to his prior approval (section 15) except where the Magistrate directs a police officer (any police officer) to enter a rescue a person (section 16)

• The Magistrate can evict the occupier of a brothel and order not to let out the premises without prior approval (section 18). This order cannot be appealed. A lease or agreement under which the house, the room, place or portion is occupied at the time when an order is passed shall become void or inoperative.

• The State Government the discretion to set up protective homes or corrective institutions (section 21). No person other than the State Government has the authority to run such ‘homes’ without the necessary license from the State Government. Transfer of an inmate from a protective home or corrective institution to another such place may be made by the State Government but the reasons are to be recorded for such transfer. •

The State Government can establish special Courts for cases under this Act (section 22A).

Summary of the 2006 Amendment Bill (NB: Although prepared in 2006 at the time of publishing this Bill had not yet passed into law): The Immoral Traffic (Prevention) Amendment Bill, 2006 proposes amendments to the ITPA including : • Prostitutes should not be penalised for soliciting clients. • Penalising any person visiting a brothel for the purpose of sexual exploitation of trafficked victims. • All offences listed in the Bill would be tried in camera, i.e., the public would be excluded from attending the trial. • The term “trafficking in persons” has been defined with a provision for punishing any person who is guilty of the offence of trafficking in persons for the purpose of prostitution. • The Bill constitutes authorities at the national and state level to combat trafficking. • Harsher punishments for brothel keeping and trafficking. • Presumption of guilt in respect of any person who recruit/transport individuals for the purposes of prostitution. • Deemed commission of the offence of trafficking by any person who attempts or abets trafficking.

PRS Legislative Research ‘Legislative Brief: The Immoral Traffic (Prevention) Amendment Bill, 2006’, 25 September 2006 at http://www.prsindia.org/uploads/media/1167469313/legis1167477521_Legislative_Brief_Immoral_Traffic_Amendment_Bill2006.pdf

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Protection of Children From Sexual Offences Act, 2012 This Act criminalises a range of sexual offences against children and creates special procedures or the investigation and trial of these offences. In particular, the legislation prescribes the formulation of Special Courts for each district to try the offences under this Act. The Special Court is empowered to take cognizance of the offence on receipt of a complaint or upon a police report (which must be lodged with it within 24 hours of a complaint) and provides for speedy investigation, trial and child-friendly procedures. This Act criminalises a range of sexual offences against children and creates special procedures or the investigation and trial of these offences. In particular, the legislation prescribes the formulation of Special Courts for each district to try the offences under this Act. The Special Court is empowered to take cognizance of the offence on receipt of a complaint or upon a police report (which must be lodged with it within 24 hours of a complaint) and provides for speedy investigation, trial and child-friendly procedures. The Act defines and penalises a range of sexual assault offences against children: - Sexual Assault - Aggravated Sexual Assault - Penetrative Assault - Sexual harassment - Using children in any form of media for pornographic purposes and indecent visual depiction of children for sexual gratification - Storage of child pornography - An attempt to commit one of the above offences

• Any offence under this Act can be recorded in writing with the Special Juvenile Police Unit or the • • • • • • • • • •

local police station. They shall report the case to the Child Welfare Committee within a span of 24 hours. The child shall have the assistance of legal counsel of their choice (s40) All medical personnel/ hotels/ lodges/ photographic studios/ hospitals shall report the sexual exploitation of children to the police. Failure to do so is a punishable offence. Unless and until the Special Court permits disclosure, the media shall maintain the privacy of the names and other details of the identity of the child. When recording the statement of the child, police officers should not be in uniform and the statement shall be recorded at the residence of the child or any place where he/she is comfortable. The child shall not be detained in the police station at night. (s24). Medical examination shall be conducted in accordance with Section 164A of the Code of Criminal Procedure. The evidence of the child shall be recorded within a period of 30 days from the date on which the Special Court takes cognizance of the matter. Reasons for delay shall be recorded in writing (s35). The trial shall finish within 1 year from the date the Special Court takes cognizance of the matter The child cannot be subjected to aggressive cross-examination, should be allowed frequent breaks when required and should not be called repeatedly to testify in court. In camera proceedings shall be instituted. The Special Court can order also order interim compensation. The National Commission for Child Rights established under the Commissions for the Protection of Child Rights shall be responsible for the effective implementation of the Act.

Lack of legal awareness has been one of the biggest impediments for this legislation not being as effective as possible. Ashok Sehgal, a legal practitioner in the Supreme Court, said: “We do not have exact data of cases that have been registered under POCSO across the country. The awareness regarding the Act is so low that there may have several cases that have not reached the proper forum to seek justice. This act enables a speedy judicial process as the special court trying a case under POCSO has the power to seek cognizance of the offence directly from the police, without involving any magistrate.”

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Bonded Labour System (Abolition) Act, 1976 Building on Article 23 of the Constitution of India, the Bonded Labour System (Abolition) Act prohibits the long-standing practice of bonded labour. A bonded labourer is defined as a person who has entered into an agreement to provide labour in forced circumstances (s2(g)). An agreement is defined to include: (i) An advance obtained by him or by any of his lineal ascendants or descendants (whether or not such advance is evidenced by any document) and in consideration of the interest, if any, on such advance (ii) An agreement in pursuance of any customary or social obligation (iii) An agreement in pursuance of an obligation devolving on him by succession (iv) An agreement for any economic consideration received by him or by any of his lineal ascendants or descendants, or (v) An agreement made by reason of his birth in any particular caste or community Forced circumstances can include one of the following situations: - Restricted freedom of employment - Restricted freedom of movement throughout India - Failure to pay the legal minimum wage - Not having the freedom to sell goods and services in the marketplace

• Every bonded labourer is to be considered free after the enactment of the BLA (s4) and any •

• •

i. ii. iii. iv. v.

custom, tradition or agreement in pursuance of which any person was required to do any work or render any service as a bonded labourer, shall be considered void and inoperative (s5). Any liability to repay a bonded debt shall stand extinguished and any decree or order for the recovery of bonded debt passed before the commencement of the Act shall be deemed to have been fully satisfied. Any property which has been forcefully taken by the creditor shall be restored to the possession of the person from whom it was seized (s6). The property of the bonded labourer shall be considered free from any charge, lien, mortgage or encumbrances (s7). The District Magistrate is authorized to promote the welfare of the freed bonded labourer by securing and protecting their economic interests (ss 10, 11). The State Governments are to formulate District Vigilance Committees comprising of the District Magistrate, two social workers, three people representing SCs and STs, one person representing the financial and credit institutions and not more than three people to represent the official or non- official agencies in the district. Vigilance Committees:Advise the District Magistrate for effective implementation of the said legislation. Provide economic and social rehabilitation of the freed bonded labourers. Coordinate the functions of the rural banks and co-operative societies in providing adequate credit to the bonded labourers. Check the number of offences carried out and conduct a survey. Defend any suit instituted against a freed labourer (ss 13, 14).

• Sections 16 to 18 criminalise the enforcement of bonded labour, the advancement of a bonded labour debt and the act of extracting bonded labour. Punishment includes imprisonment for up to 3 years and a fine of up to 2000 INR.

2 ‘Government yet to implement POCSO Act to protect children, Times of India, 8 September 2013 at http://timesofindia.indiatimes.com/city/varanasi/Government-yet-to-implement-POCSO-Act-to-protect-children/articleshow/22406711.cms

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Child Labour (Prohibition and Regulation) Act, 1986 Under this Act, children under the age of 14 are prohibited from working in certain industries. The 2006 amendment to this Act included domestic service and working in roadside restaurants as prohibited industries. For other industries, the Act sets out working hours and conditions for children, including that a child cannot be made to work overtime (s7). Any dispute about the age of the child is to be determined by a prescribed medical authority (s10). All employers must keep a register with the details of children employed and working hours (s11). Penalties for violation of the Act include a sentence of 3 to 12 months and a fine of 10,000-20,000 INR. A repeat offender can be imprisoned for up to 2 years.

Summary of 2012 Amendment Bill The Child Labour (Prohibition and Regulation) Amendment Bill, 2012 was introduced in the Rajya Sabha on December 4, 2012. The Bill seeks to amend the Act by prohibiting employment of children below 14 years in all occupations except where the child helps his family after school hours. The Bill adds a category of persons called “adolescent” to this particular Act, defined as a person between 14 and 18 years of age. The Bill prohibits employment of adolescents in specified hazardous occupations (mines, inflammable substance and hazardous processes).The central government may add or omit any hazardous occupation from the list included in the Bill. The Bill enhances the punishment for employing any child in an occupation to imprisonment between 6 months and two years (from 3 months-one year) and/or a fine of 20,000 to 50,000 INR (from 10,00020,000 INR). It also includes penalty for employing an adolescent in a hazardous occupation, with the same penalty as set out above. The government may confer powers on a District Magistrate to ensure that the provisions of the law are properly carried out.

Juvenile Justice (Care and Protection of Children) Act, 2000 This Act sets out processes for both the care and protection of juveniles as well as dealing with juveniles in conflict with the law. A juvenile is defined as any person under the age of 18. The Act criminalises anyone subjecting a juvenile to cruelty (s23), employing a juvenile for begging (s24) and procuring a juvenile for the purpose of hazardous employment or for bonded labour (s26). It also prohibits the withholding of the earnings of juveniles (s26). All of these offences are cognizable, which mean they are sufficiently serious to allow a police officer to arrest an offender without a warrant. The Act also establishes Child Welfare Committees to ensure the care and protection of children in need. All juveniles in need of care and protection must be brought before the Child Welfare Committee within 24 hours of authorities taking custody of them. The responsibilities and duties of the CWC are set out in Chapter 3 of the Act. Juvenile Justice Boards are also established to oversee procedures and decisions relating to children in conflict with the law. Juvenile Police Units and designated juvenile police officers are also established. Observation and special homes are established for both children that require care and protection and those that are in conflict with the law. PRS Legislative Research ‘Bill Summary: The Child Labour (Prohibition and Regulation) Amendment Bill, 2012’, 26 December 2012 at http://www.prsindia.org/billtrack/the-child-labour-prohibition-and-regulation-amendment-act-2012-2553/ and http:// www.prsindia.org/uploads/media/Child%20Labour/Bill%20Summary%20--%20Child%20Labour%20_Prohibition_%20amendment%20Bill,%202012.pdf

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Amendment Bill An amendment bill has been proposed which, among other things, states that a juvenile between 16-18 years can be tried as an adult for heinous crimes at the discretion of the Juvenile Justice Board.

The Factories Act, 1948 In addition to regulating other matters, this Act forbids the employment of children under fourteen years of age in all factories. Children between the ages of 14 and 18, defined in this Act as “adolescents”, can be employed if they have a certificate of fitness from an authorised doctor. Adolescents are prohibited from working night shifts and are only allowed to work 4.5 hours a day.

The Minimum Wages Act, 1948 In addition to regulating other matters, this Act forbids the employment of children under fourteen years of age in all factories. Children between the ages of 14 and 18, defined in this Act as “adolescents”, can be employed if they have a certificate of fitness from an authorised doctor. Adolescents are prohibited from working night shifts and are only allowed to work 4.5 hours a day.

The Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979 This Act regulate the employment of inter-state migrant workers, including conditions of service and worker rights. In relation to rights, migrant workers are entitled to: - - - - - -

Equal or better wages than those paid to local workmen or the minimum wage as set out in the Minimum Wages Act - whichever is greater; An allowance for being displaced from their home state (s 14); An allowance to travel to their home state including payment of wages during the period (s15); Satisfactory accommodation and medical facilities free of charge; Terminate their employment after the contract period without any liability; and Lodge complaints with the authorities within three months of any incident.

The Act applies to establishments and contractors who employ five or more migrant workers or who have employed migrant workers on any day of the preceding 12 months. The Act requires establishments to be registered and contractors to have licences. Registers detailing each migrant worker employed, the nature of the employment and the rate of wages must be kept. Employers and contractors found to have breached this Act can be sentenced for up to one year imprisonment and/or a fine of up to 10,000 INR.

The Transplantation of Human Organs Act, 1994 This Act regulates the removal, storage and transplantation of human organs for therapeutic purposes only. The Act criminalises the unauthorised removal of organs (s18) and commercial dealings in organs (s19). Commercial dealings in organs includes: - Making or receiving a payment for the supply or human organs - Seeking to find a person will to supply an organ for payment - Offering to supply an organ for payment - Initiating or negotiating any commercial arrangement for organs

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- - -

Participating in the “management” or “control” of a person who is providing an organ for payment Advertising for people to provide organs for payment Production of fake documents providing donor authority for removal of organs

Cognizance of any offence under this act can be taken by the Appropriate Authority appointed under this Act and a Metropolitan Magistrate or a Judicial Magistrate (s20). The Transplantation of Human Organs (Amendment) Act, 2011 allows swapping of organs and widens the possible donor pool by including grandparents and grandchildren in the list. The rules of the amended law were notified in March 2014. Rule 5 of the Transplantation of Human Organs and Tissues Rules, 2014 lists the duties of a Registered Medical Practitioner which clearly indicates that he/she is obliged to ascertain whether or not a valid donor authorisation exists or not. Rule 32 makes it mandatory for all information to be duly recorded in the National Registry regarding donors and recipients of human organ and tissue. The amended section 370 of the IPC also specifically penalises trafficking for the purposes of organ trade (see above under Indian Penal Code).

The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 This Act criminalises atrocities against members of Scheduled Castes and Scheduled Tribes (SC/ST) by non-SC/ST members. It calls upon all States to convert an existing Sessions Court in each district into a Special Court to try cases and creates provisions for States to declare areas with high levels of caste violence to be “atrocity-prone”. In these areas States can appoint qualified officers to monitor and maintain law and order.

• Section 3 sets out the acts that constitute atrocities including forcing a person to work. •

• •

Subsection 3(i)(vi) states that forcing a member of SC/ST to undertake forced or bonded labour is an atrocity. Section 5: Whoever, having already been convicted of an offence under this Chapter is convicted for the second offence or any offence subsequent to the second offence, shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to the punishment provided for that offence. Section 14: For the purpose of providing for speedy trial, the State Government shall, with the concurrence of the Chief Justice of the High Court, by notification in the Official Gazette, specify for each district a Court of Session to be a Special Court to try the offences under this Act. Section 15: For every Special Court, the State Government shall, by notification in the Official Gazette, specify a Public Prosecutor or appoint an advocate who has been in practice as an advocate for not less than seven years, as a Special Public Prosecutor for the purpose of conducting cases in that Court.

The Rules under the Act set out relief and rehabilitation entitlements. In reality, the Act has not been well implemented. Although the Act mandated the creation of Special Courts prevent long delays in the judicial process, not all states have created separate Special Courts in accordance with the law. In most states, existing Sessions Courts have been designated Special Courts, while still being asked to process their usual caseloads. Since many different Acts require the creation of Special Courts, such Sessions Courts are often overloaded with a number of different kinds of “priority” cases, resulting in a situation where none of these cases receive the attention they are mandated to receive

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The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Amendment Bill, 2014 seeks to amend the Act. It proposes the following amendments:-

• The Bill proposes to amend certain existing categories and add new categories of actions to be treated as offences.

• The Bill proposes that: (a) intentionally touching an SC/ST woman in a sexual manner without

• • •

• •

her consent, or (b) using words, acts or gestures of a sexual nature, or (c) dedicating an SC/ ST women as a devadasi to a temple, or any similar practice will also be considered an offence. Consent is defined as a voluntary agreement through verbal or non-verbal communication. New offences added under the Bill include other acts committed or attempted which are derogatory to human dignity. Presumption that the accused was aware of the caste or tribal identity of the victim if the accused had personal knowledge of the victim or his family, unless the contrary is proved. Role of courts: Under the Act, a Court of Session at the district level is deemed a Special Court to provide speedy trials for offences. A Special Public Prosecutor is appointed to conduct cases in this court. The Bill substitutes this provision and specifies that an Exclusive Special Court must be established at the district level to try offences under the Bill. In districts with fewer cases, a Special Court may be established to try offences. An adequate number of courts must be established to ensure that cases are disposed of within two months. Proceedings shall be continued until all the witnesses in attendance have been examined. Appeals of these courts shall lie with the high court, and must be disposed of within three months. A Public Prosecutor and Exclusive Public Prosecutor shall be appointed for every Special Court and Exclusive Special Court respectively. Protection of victims and witnesses: It shall be the duty of the State to make arrangements for the protection of victims, their dependents and witnesses. The State Government shall specify a scheme to ensure the implementation of rights of victims and witnesses. The courts established under the Bill may take measures such as: (a) concealing the names of witnesses, (b) taking immediate action in respect of any complaint relating to harassment of a victim, informant or witness, etc. Any such complaint shall be tried separately from the main case and be concluded within two months.

Prohibition of Child Marriage Act, 2006 This Act provides for a marriage of a minor to be found void if an application is made by one of the contracting parties to the District Court (s3). A minor is defined as male under 21 years of age and a female under 18 years of age (s2). The Act also makes the following actions criminal offences: - An adult male marrying a minor female (s9) - Solemnizing the marriage of a minor (s10) - Promoting or permitting the marriage of a minor (s11) These offences are cognizable and non-bailable. A Judicial Magistrate First Class or a Metropolitan Magistrate is empowered to issue an injunction against conducting child marriages upon receiving information or complaint from a Child Marriage Prohibition Officer or from any NGO or individual. JMFC and Metropolitan Magistrate are empowered to take suo moto cognizance of such acts and use minimum force if required (s13). Child Marriage Prohibition Officers are established under section 16. Duties include creating awareness, collecting evidence, prevention of solemnization of such marriages, submission of statistics to the State Government and performing any other duties assigned to him by the State Government. ‘Organs transplant Act notified’, The Hindu, 18 January 2014, http://www.thehindu.com/todays-paper/tp-national/organs-transplant-act-notified/article5588655.ece

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Observations: The age of majority for males under Section 3 of the Majority Act 1875 is 18, however under this Act a male is a minor until he turns 21. The legislation fails to address the issue of sexual exploitation associated with child marriage. Such an act especially exposes the young girl to serious health issues and there have been numerous incidents of minor girls dying due to pregnancy related complications. These concerns have been voiced in the 205th Law Commission Report dated 5 February 2008. Furthermore it is a violation of the United Convention on Rights of the Child which aims at preventing sexual abuse of children.

SUMMARY OF CASE LAW Both High and Supreme Court cases are referenced. High Court precedent only binds the relevant state, although it may be persuasive when a similar issue arises in another state. Supreme Court cases bind all states in India.

Use of Public Interest Litigation – Article 32 Constitution of India The Supreme Court is empowered under Article 32 of the Constitution to protect fundamental constitutional rights via directions, orders or writs. Under Article 142, the Court can pass enforceable binding orders, which constitute binding precedent. (Gaurav Jain vs. Union of India AIR 1997 SC 3021) There are no restrictions on who can apply for relief to the Supreme Court under Article 32. The victims of violation, or any bona fide representative of a victim can move to the Court. The court can develop any method to deal with issues raised in petitions, including appointing Commissioners. (Bandhua Mukti Morcha Vs.Union Of India (UOI) and Ors. AIR 1984 SC 802)

Sex Trafficking & General Criminal Justice Provisions Duty to prosecute There is a duty on law enforcement agencies to investigate and prosecute those responsible for violating the law and fundamental rights set down in the Constitution (P.N. Swamy Vs. Station House Officer 1998 (1) ALD 755). Special Police Officer must be at rescue A person must be rescued by someone that is a Special Police Officer or a police officer authorised by the Magistrate. (Pushpa V. State of UP and Ors. 2004 Cri LJ 4540, 2004). First Information Report The FIR is a vital piece of evidence for the purpose of corroborating oral trial evidence. If the FIR is doubtful, the entire prosecution case becomes doubtful. Any person who verifies it must know the contents. (Mohammad Ali Al Gitar Vs.State of U.P.2014 (1) ACR 279). A small error, such as a wrong address in the FIR is not fatal to the prosecution case, especially when later rectified (Asha Tamang Vs. State of West Bengal 2012 (1) CHN 465). FIR regarding offences under the Immoral Traffic (Prevention) Act can be lodged by any person (Smt. Lata v. State of UP and Anr. 2011 (2) ACR 1435, 2011) Presumption against Bail In the case of Guria, Swayam Sevi Sansthan Vs.State of U.P. and Ors. 2009 (10) SCALE 516, the Supreme Court held that the High Court should not have granted bail to those accused of sex trafficking due to the gravity of the offence (sex trafficking of minor girls). In the 2008 case of Shaikh Jaffar Shaikh Ahmed V/s. State of Maharashtra & Ors. 2008 Cr. L. J. 2413, the High Court of Maharashtra also held that cases

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under the ITPA are very serious in nature and, unless there are exceptional circumstances or facts, bail should be denied. In addition to the seriousness of the offence, the wealth and influence of the accused, and hence the ability to influence the investigation and intimidate witnesses, can be considered when determining the granting of bail. (Souda Beevi v. S.I. of Police, Pallickal Police Station and Another 2012 (1) Crimes 574) The right to a speedy trial, especially if in pre-trial detention Especially when a person is held in custody before a trial, they have a right to a speedy trial. (Rajdev Kumar Mathura Yadav Pappu Vs The State of Maharashtra) Video Conferencing If inconvenient for witnesses to travel interstate due to particular circumstances, statements can be recorded via video conferencing (Court on its own Motion v. State (Crl. M. 1467/04 in Crl. W. 532/1992; Order: 27.02.2004). When using video conferencing, judge must abide by safeguards set out by Supreme Court in State of Maharashtra v. Dr. Praful B. Desai, (2003) 4 SCC 601. Victim turning hostile – reliance on earlier statements Evidence of a hostile witness cannot be discarded in toto and the earlier testimony of such witness can be used to corroborate other reliable evidence. When no prejudice is caused to the accused due to non-examination of the witness or when there is other acceptable evidence available from the relevant documents or testimony, the prosecution case will not be affected. (Asha Tamang Vs. State of West Bengal 2012 (1) CHN 465) Child prostitution and trafficking – Establishment of Advisory Committees All state and Union Territory governments should set up Advisory Committees to suggest measures to eradicate child prostitution and programmes to be implemented for care, treatment, development and rehabilitation. All government should take steps in providing rehabilitative homes manned by wellqualified trained social workers, psychiatrists and doctors. (Vishal Jeet v.Union of India and Others AIR 1990 SC) Sending women and girls to rehabilitation homes The provisions of ITPA that empower the Magistrates to order rescued women be kept in custody in rehabilitation homes are not unconstitutional. However, government welfare homes must be renovated and NGOs given licenses to establish welfare homes. (P.N. Swamy Vs. Station House Officer 1998 (1) ALD 755). In the later 2011 case of Budhadev Karmaskar Vs State of West Bengal the Supreme Court observed that compelling the sex workers to remain in these homes after rescue sometimes amounted to treating adult women as prisoners. Further it observed that temporary or long-term custody homes is not a long-term solution, but rather up-skilling and empowerment needs to occur. The Court ordered: • State and Union Territories to carry out surveys of sex workers and determine who wants assistance to move into a new area of employment. This is managed by a specialist Panel established. • NGO or authorities must report situations where a family is forcing a girl into sex work to the Executive Chairman/Secretary of the State Legal Services Authority • State Legal Services Authorities should provide a legal aid and general assistance helpline number for all actors to use: the NGOs, State officials, sex workers and trafficking victims. • Alternative forms of employment and rehabilitation should be organised for sex workers • Sex trafficking victims should be returned to their home state for rehabilitation if possible (Savera, Smt. Tara Kerkar and Ors. Vs. State of Goa and Ors. MANU / MH / 1559 / 2008) Article 34, United Nations Convention on the Rights of the Child, 1989.

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Sex trafficking victims should be returned to their home state for rehabilitation if possible (Savera, Smt. Tara Kerkar and Ors. Vs. State of Goa and Ors. MANU / MH / 1559 / 2008) Closure of, and eviction from, a brothel A place where sex work is being undertaken within 200m of a public space can be closed without requiring a criminal prosecution. However a conviction is required to evict the occupier (Chitan J. Vaswani and Anr. Vs.State of West Bengal and Anr (1975)). The occupier doesn’t have to be the owner, and can be a lessee. If the Magistrate deems that the owner had no knowledge of the activities, the premises shall be restored to him/her (Dhansingh Gopal Chauhan Vs. State of Maharashtra 2005 (3) MhLJ 500) however the Court can also order that the property be ‘attached’ so that, if the owner wants to lease the property again, he/she must get the approval of the court first. (The State vs. Kalpana Ranganath Galphade)

Child Labour and Child Trafficking Child labour – Supreme Court M C Mehta vs. State of Tamil Nadu 1996 6 (SCC) 756 – Supreme Court The Supreme Court directed all state governments and the central government to conduct a survey to identify all children below 14 years of age working in hazardous industries. Governments were directed to remove the children identified from work and ensure they receive education. Additionally the Court suggested that any employer in breach of the Child Labour Act pay a fine which is placed in a rehabilitation fund. The Court also directed an Advocates Committee prepare comprehensive report with recommendations to tackle child labour. The recommendations included (not exhaustive): • Employers should not let children work for more than six hours a day. • Piece-rate wages should be abolished and payment should be made on monthly basis. Wages should be commensurate to the work done by the children. • Transport for children to and from work should be provided, a basic diet, facilities for recreation, socialization and education and all included in the insurance scheme. • A welfare fund and committee should be created, answerable either to the Supreme Court or to the High Court. Employers and States should each deposit Rs. 2 per month per worker into the fund. • A National Commission for children’s welfare, answerable to the Supreme Court, should be set up to prepare a scheme for child labour abolition in a phased manner. Child labour and wages in Karnataka A Srirama Babu Vs.Chief Secretary, Gov of Karnataka, Bangalore and Ors. (Order, not a judgment) 1998 (1) KarLJ 191 • Equal wages for children and adults may be notified under the Minimum Wages Act. • There should be a total ban of employing children below the age of 10. • The State should create a separate independent department concerned with child welfare. • The State should maintain a record of the birth and progress of children until the age of 14. The progress should monitor whether the child is in the school or working and, if so, where. • The State should establish as many after-care homes as are feasible for street children. • The Labour Legislation should also be enforced by the State strictly. There should be medical checks, and the factory or workplace must be made congenial and hygienic. In places where large number of children are employed, the State should endeavour establishing of a school as indicated by the Supreme Court (MC Mehta case) • The State should ensure children enjoy the same benefits as adults. • The Government should create a fund to provide social security to the child labourers who are working in unorganized sectors.

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•

The Government should maintain a record of employers that breach the law and take this into consideration while granting licenses and other benefits.

Child labour in Uttar Pradesh The 2008 Uttar Pradesh case of Vishnu Dayal Sharma held that: • Prosecution cases should be decided expeditiously, within three months if possible. • UNICEF and NGOs to conduct a survey of rescued children to determine reasons for disappearance. All rescued children to be produced before CWC. An update is to be provided by the next court date on: • Constitution of Juvenile Justice Boards and Chile Welfare Committees in each district. • Efforts be made for enrolment of all the available remaining child labourers in government schemes and school. Consider providing credit to families of child labour, after they constitute self-help groups. • Establishment of progress website on a pilot basis to identify and monitor out of school children and enrolment in school. Implementation of a ‘data bank’ scheme to monitor progress of children of why they may drop out. • Information regarding legal aid available for missing children and parents to be provided. Child Welfare Committee – Maharashtra case At the first possible instance, the Magistrate should have the age of the person determined and if they are a juvenile send them to Child Welfare Committee. The CWC has the final say to dispose of the cases regarding the care, protection and repatriation of children, including assessing whether the parent/ guardian is fit to take custody of the child. No advocate can appear before CWC on behalf of a child, only parents and guardians can appear themselves or through an advocate (Prerana Vs.State of Maharashtra and Ors. 2003). FIRs must be lodged in child labour cases and businesses shut down until backwages are paid – Delhi Case. In Save the Childhood Foundation vs. Union of India and Others the Delhi High Court ordered FIRs to be lodged in all cases of child labour, as well as the sealing of businesses (cancellation/suspension of licences) until back wages or court fines, as applicable, are paid. A conviction is not required. Placement agencies: child trafficking and labour In the 2012 Bachpan Bachao and Ors v Union of India and Ors case the Supreme Court made a number of directions regarding child trafficking and labour, particularly the regulation of placement agencies that place children and adults in workplaces: • Labour Department must register all placement agencies who deploy people in Delhi for employment. • CWCs must produce a report outlining action undertaken to address complaints of child domestic workers. Information on how to access CWC services must be put online. • A single enforcement agency should be created to reduce confusion and improve accessibility. • The adoption of guidelines for NGOs and Police set out in the report “Indian Child: India’s Eternal Hope and Future” prepared by the Solicitor General. • Gram Nyayalayas and Panchayats should be encouraged to identify children who need protection. A contact point in each Zila Parishad must be established. • The Integrated Child Protection Scheme should be implemented.

Vishnu Dayal Sharma S/o Banwari Lal Sharma Vs. State of Uttar Pradesh through Secretary Home Affairs, Senior Superintendent of Police, Station Officer and Jitendra @ Pradeep S/o Braj Mohan Parashar MANU/UP1142/2008 8 Save the Childhood Foundation vs. Union of India and Others [WP (Crl) 2069/2005] – Order dated 28 May 2012 7

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Missing children In the 2013 case of Bachpan Bachao Andolan v. Union of India and Ors the Supreme Court ordered:

• In all missing children cases, there will be a presumption of the crime of kidnapping or trafficking unless proven otherwise from investigation. Therefore, all cases are to be registered as a cognizable offence and investigated. Where an FIR has not been lodged and the child is still missing, it must be lodged within a month. • A missing child is “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. The child will be considered missing and in need of care and protection within the meaning of the later part of the Juvenile Act, until located and/or his/her safety/well-being is established.” • If a missing child is not recovered four months after the FIR is lodged, the matter is forwarded to the Anti-Human Trafficking Unit for intensive investigation. The AHTU shall file status reports after every three months to keep the Legal Services Authorities updated on the investigation. • All complaints regarding children (for non-cognizable offences), to be investigated after referring them to a magistrate. • Every recovered child have their photograph published widely. • A Standard Operating Procedure must be developed to handle the cases of missing children. As part of the Standard Operating Procedure, a protocol should be established by the local police with the High Courts and the State Legal Services Authorities for monitoring missing children cases. The court also directed that: • Each Police Station should have one Juvenile Welfare Officer as directed under the Juvenile Justice Act. Additionally, a Special Juvenile Officer should be on duty in shifts in Police Stations to ensure that directions in this order are duly implemented. A paralegal volunteer recruited by Legal Services Authority should also be stationed at police stations to monitor the management of missing children complaints. • A computerized programme creating a network between child protection and child police units should be created to trace and repatriate missing children. • Homes for recovered children who do not have any place to go to be established within three months.

Bonded Labour Meaning of Forced Labour and who can apply for a remedy People’s Union for Democratic Rights Vs. Union of India (1982) 3 SCC 235 • ‘Forced labour’ under Article 23 includes getting paid less than the minimum wage. ‘Force’ does not need to be physical force and can be compulsion due to poverty and financial conditions (also stated in 2002 Bihar case of Rajpati Devi Vs. State of Bihar 2002 (2) PLJR 203) • Bonded child labour can violate Article 24 (child labour), Article 14 (equal pay), Article 21 (life and liberty, due to the wide interpretation in Maneka Gandhi v. Union of India regarding loss of human dignity and liberty when being forced to work) and Article 23 (forced labour) • Construction is a hazardous industry and therefore children below 14 cannot work in this sector under Article 24 of the Constitution • An NGO or member of the public can apply for a legal remedy on behalf of a victim

Bachpan Bachao and Ors. V.Union of India and Ors. and Shramjeevi Mahila Samiti V. State and Ors. And Kalpana Pandit v. State 2012 IAD (Delhi) 565 10 Bachpan Bachao Andolan v. Union of India and Ors 2013 (7) SCALE 509 (Order, not a judgment) 9

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Presumption that there has been an agreement for an advance In the case of Bandhua Mukti Morcha Vs. Union Of India (UOI) and Ors. AIR 1984 SC 802, the Supreme Court held that, whenever it is shown that a labourer is made to provide forced labour, the Court makes a presumption that the labourer is required to do so in consideration of an advance or other economic consideration received by him. He is therefore a bonded labourer entitled to the benefit of the provisions of the Act. This presumption may be rebutted if satisfactory material is produced. In the Allahabad High Court case of Shiva Ent Udyog Vs. National Human Rights Commission and Ors. 2011 (3) ADJ 189, the Court held that, despite the fact there is no evidence of an advance or agreement, no freedom to choose employment or livelihood results in bonded labour. Bonded labour is a violation of human rights as defined under Section 2(d) and (f) of the Protection of Human Rights Act, 1993 and the National Human Rights Commission has the authority to enquire, investigate and take action in accordance with that Act. NGOs should be included on rescues when they have identified bonded labourers Neeraja Chaudhary Vs. State of M.P.AIR 1984 SC 1099 – Supreme Court Whenever any representative of an NGO identifies bonded labour the state government should take immediate action to identify and release the labourers. The government officials should take the representative with them to the rescue and provide a copy of the report. Officers dealing with the problem of bonded labour rehabilitation should be specifically trained and sensitized. There should be constant check on the activities of officers charged with the task of securing identification, release and rehabilitation of bonded labourers. Directions for improved action on bonded labour & Role of NHRC Public Union for Civil Liberties (PUCL) Vs. State of Tamil Nadu and Or (2004) 12 SCC 381 and Public Union of Civil Liberties Vs. State of Tamil Nadu and Ors. 115 (2013) CLT 535 (SC)

• NHRC is ordered by the Supreme Court (1997 order) to monitor the implementation of the provisions of the BLA. 2013 Supreme Court Directions:

• All States and Union Territories shall constitute Vigilance Committees within 6 months. • All States and UTs shall make proper arrangements for rehabilitation of released bonded • • •

•

labours or identify two NGOs to perform this role. Plans for rehabilitating released bonded labourers must be prepared within 6 months. Bonded labour surveys to be conducted every three years by District Level Vigilance Committees and Sub Divisional Vigilance Committees and submitted to the NHRC. Findings to be collated in a database available online. All Gram Panchayats and local bodies must be directed to report bonded labour to the District Magistrate, identify child domestic workers and ensure that they get education. States that report no bonded labour may have had a faulty methodology in their surveys. NHRC Guidelines on the identification of bonded labourers are to be followed with suitable modifications for local conditions. Steps are to be taken to enhance the rehabilitation package from the present limit of Rs. 20,000. The District Magistrates are directed to effectively implement the Act as well as the Minimum Wages Act, the Workmen Compensation Act, the Inter-State Migrant Workmen Act, Child Labour (Prohibition and Regulation) Act.

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• Using the Legal Services Authorities – Uttar Pradesh • In Sageer & Others vs. State of U.P. and Others 2012 (91) ALR 59, the High Court directed: • As the Vigilance Committees often fail, paralegals trained by Legal Service Authorities may

• •

be in a better position to tackle this problem. The Court directs the Uttar Pradesh State Legal Services Authority to make sincere efforts to set up the legal aid clinics and provide for paralegals and lawyers at legal aid clinics in order to address bonded labour. National and State Human Rights Commissions can issue directions re bonded labourers Senior police and labour officials should direct subordinate officials to initiate immediate action in relation to bonded labour complaints, and inform the District and Sub-divisional Legal Services Authorities (LSAs). LSAs which shall examine the complainants and investigate into the genuineness of the bonded labour complaints and give legal assistance to the bonded labourer complainants.

In Madan the District Judge was directed to get the matter immediately examined by the local LSA to determine if they are bonded labourers and what relief they are entitled to.

Madan Vs. State of U.P. and Others [2012 (132) FLR 1085]

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APPENDIX 2 25 NGOs that undertake legal work, including assisting with prosecutions and strategic public interest litigation were interviewed during the research period. Other NGOs that primarily assisted with prevention, protection, awareness raising and rehabilitation were also interviewed, but are not cited in Table 1. Table 1: NGOs interviewed that undertake legal work NAME OF NGO

FOCUS OF WORK

REGION

ADITHI

Bonded labour, child labour and sex trafficking.

Bihar

Apne Aap

Women’s rights, including addressing sex trafficking.

Delhi

Bachpan Bachao Andolan

Child rights, including child labour and trafficking. Undertakes legal work.

Delhi based but operates in multiple states

Breakthrough

Gender-based violence.

Delhi based but operates across India

Centre Direct

Child labour, bonded labour and Bihar sex trafficking.

Chaitanalya

Domestic servitude.

Delhi

Coalition for Organ Failure Solutions

Organ trafficking related issues.

National NGO, with offices in South India.

Freedom Firm

Sex trafficking. Undertakes legal Maharashtra work.

Guria

Sex trafficking, bonded labour and child labour. Undertakes legal work.

Eastern Uttar Pradesh, based in Varanasi

HAQ Centre for Child Rights

Child rights, including child labour.

Delhi

Human Rights Law Network

Network of pro bono lawyers that undertake cases in a range of areas including on human trafficking and forced labour. Undertakes legal work.

International NGO that operates across India, with offices in Bangalore, Chennai, Delhi, Kolkata, Mumbai

Institute for Developmental Education and Action

Child and bonded labour.

Motihari, Bihar

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International Justice Mission

All forms human trafficking and forced labour including sex trafficking, bonded labour and child labour. Each office has a particular focus (may just work on one area). Undertakes legal work.

International NGO that operates across India, with offices in Bangalore, Chennai, Delhi, Kolkata, Mumbai

Justice and Care

All forms of human trafficking and forced labour including sex trafficking, bonded labour and child labour. Undertakes legal work.

International NGO that operates across India. Offices are located in Bangalore, Delhi, Kolkata and Mumbai.

Justice Ventures International

All forms human trafficking and forced labour including sex trafficking, bonded labour and child labour. Undertakes legal work.

International NGO that operates primarily in Delhi, Bihar and Uttar Pradesh. Office is located in Delhi.

Lakshya

Child trafficking.

Patna, Bihar

Lawyers Collective

Numerous legal rights areas, including the rights of sex workers and trafficking victims

Delhi based

Manav Sansadhan Evam Mahila Vikas Sansthan (MSEMVS)

All forms of human trafficking and forced labour including sex trafficking, bonded labour and child labour. Undertakes legal work.

Operates in 14 districts in both Uttar Pradesh and Bihar.

NIRDESH

Child labour and bonded labour.

East Champaran district, Bihar

Prayas Juvenile Aid Centre

Child rights issues, including child trafficking. Have assisted with a small number of prosecution cases and public interest litigation cases.

Although Prayas operates in multiple states, only the Bihar branch was interviewed.

Pragati Gramodyog Sansthan (PGS)

Bonded labour.

Allahabad, Uttar Pradesh

Shakti Vahini

Child and women’s rights NGO, including work to address trafficking. Undertakes legal work.

Delhi based that operates in multiple states

STOP

Sex trafficking. Undertakes legal Delhi work.

Tatvasi Samaj Nyas (TSN)

Sex trafficking. Undertakes legal Purnea, Bihar work.

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APPENDIX 3: LEGAL PROCESS FLOWCHARTS BONDED LABOUR Approach District Magistrate (DM) with evidence of bonded labour & request order for intervention (written)

DM orders rescue. DM can delegate powers to Sub-Divisional Magistrate (SDM) or Labour Officials to carry out rescue

Plan rescue with relevant officials

At the rescue or afterwards, the DM or his delegate takes a statement from the labourer and determines if he/she is a bonded labourer. If so, a release certificate is issued, entitling the person to 20,000 INR rehabilitation & access to other government schemes.

• The District Magistrate Under the Bonded Labour System (Abolition) Act (BLA), the Executive Magistrate is authorised to conduct inquiries, rescues, release bonded labourers and oversee rehabilitation. The Executive Magistrate is normally the District Magistrate (DM) or Sub-Divisional Magistrate (SDM), who is also empowered under the Act to delegate his duties to other officials. The DM is also the Chair of the official District Bonded Labour Vigilance Committee which is authorised to identify and release bonded labourers in the district. In practice, many NGOs have stated that these official Bonded Labour Vigilance Committees are not performing their functions.

NGO staff and/or lawyer present should ensure vakalatnama signed

Statements of bonded labourers taken by labour enforcement officials to determine back payment of wages claim.

DM should request police to lodge FIR – usually in the form of a requisition letter. DM or NGO can suggest relevant offences to the police, if any in addition to the normal offences under the BLA (ss1617). If IPC or SC/ST offences included, statements to the police (s161) or judicial magistrate (s164) may be required.

If only offences under the BLA are included, the DM or SDM can hear the case under summary trial. NGOs have noted that trials heard before the DM and SDM are very slow and it is better for them to be transferred to the criminal courts.

If offences under the IPC or Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act are included, then the case is transferred to a Criminal Court and heard before a Sessions Judge. If BLA offences are not included, lawyer assisting should raise at framing of charges and in the trial.

• Snapshot – Pursuing Legal Action Pursuing legal action in bonded labour cases can be difficult as bonded labourers usually live in close proximity to their employer and, when they are from the same community, can fear retribution from the employer or not being able to gain later employment. Additionally, some states refuse to admit bonded labour exists, and declare themselves “bonded labour free states”. These factors can encourage other types of settlement, where the focus is on helping bonded labourers clear their so-called debt and get back payment of wages, rather than pursuing legal rescue, release and prosecution. Additionally, the BLA is quite weak and punishments for breaches of the Act are not sufficiently stringent. The introduction of s370, and the use of other legislation such as the SC/ST Act in addition to the BLA provisions, provides the opportunity to transfer cases to a normal criminal court, increase punishment against employers, improve the net amount of compensation available to victims and thereby create a stronger deterrent.

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CHILD LABOUR AND TRAFFICKING Identification of children and notify relevant authority

Offences under the CLA are non-cognizable and police cannot arrest without a warrant. Children are defined as any person under the age of 14. Labour department can inspect and then remove children or a complaint can be lodged with Magistrate. In Delhi, in all cases child labour an FIR must be lodged, and a taskforce must be involved in rescue.

Offences under the Juvenile Justice Act are cognizable. A juvenile is defined as a person under the age of 18. Trafficking for the purpose of slavery/servitude under the IPC is also cognizable. For cognizable offences, police can be approached to register an FIR and begin an investigation and arrest without a warrant. Labour Officials are notified to attend rescue and determine wages and labour issues.

Rescue

NGO staff normally given chance to counsel children. Briefs child on why rescued & next steps

Child taken to police station, statement taken and FIR lodged.

Labour officials: determine wages owed to child and start process for back-payment

Police investigation.

Child rescued must be taken to the Child Welfare Committee within 24 hours. CWC may also attend place of rescue.

Police file final report with Magistrate, with all evidence (s173). Magistrate considers, charge sheet presented to accused.

Framing of Charges

Trial, including prosecution evidence

Judgements and sentencing

Appeal

If age is disputed, the child must be referred to a registered doctor to certify age.

• Snapshot: Pursuing Legal Action Pursuing legal action in child labour cases is easier in some states due to High Court decisions and state action plans – in Delhi, the police are involved in all cases of child labour and cases are generally treated as trafficking crimes. In other states, sometimes only the Labour Department is involved and cases are pursued through the quasi-judicial labour courts. The introduction of section 370 has the potential to ensure that cases of child labour across India are dealt with as trafficking offences. As the CLA only prohibits children that are under 14 from working in certain industries, use of other legislation, such as the Juvenile Justice Act and Bonded Labour Act, also can also be used when children that are above 14 are exploited.

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HUMAN TRAFFICKING Approach police with evidence of trafficking in order to plan rescue. Can approach AHTU, Special Juvenile Police Unit or local police.

Approach Judicial Magistrate or Executive Magistrate for order for rescue in sex trafficking cases (s15 ITPA).

For sex trafficking cases, a Special Police If on the order of a Magistrate, Officer can carry out a rescue without any police officer with order of Magistrate (s15 ITPA) experience can be part of rescue.

Rescue conducted, 2 independent witnesses, evidence collected. NGO obtain vakalatnama to represent victim. Private persons are also able to arrest traffickers (s43 CrPC). This is how some NGOs arrest traffickers and intercept children at transport hubs.

Approach police with complaint of suspected trafficking – person is missing. FIR registered. In case of children, police must register FIR and assume crime of kidnapping or trafficking (BBA v Union of India 2013).

Bail hearing for any people arrested. NGO private lawyer can assist public prosecutor under s301(2) CrPC.

Victims taken to police station, statement taken by police and FIR lodged.

Medical checks are undertaken to verify if sexual assault. Female children are examined by female doctors. Checks for age can be carried out.

Police file final report with draft charge sheet. Magistrate considers, charge sheet presented to accused.

Statement to Magistrate given in some cases. Police investigation.

Framing of Charges Trial Judgement and Sentencing Any appeal Compensation after conviction under s357A CrPC

Temporary custody determined for children by CWC within 24 hours, and for adults by Magistrate

If person is a child and subject to sexual assault, then the sections of the Protection of Children from Sexual Offences Act might be relevant. In addition to reporting to the CWC, the police must report the matter to the Special Court within 24 hours.

• Snapshot: Pursuing Legal Action All forms of human trafficking – sex, labour and organ trafficking – are included under the amended section 370 of the Indian Penal Code. Additionally victims of crime compensation has been introduced in a number of states in India. Although no cases under the amended section had reached the trial stage at the time of writing, stakeholders emphasised that the police and courts were treating trafficking offences more seriously.

PUTTING JUSTICE FIRST | APPENDICES

APPENDIX 4 : NGO NETWORKS AND HELPLINES NGO NETWORKS ATSEC: a network of NGOs across India all working to combat sex trafficking. The network is managed by a national Coordinator and has multiple state chapters, managed by state coordinators. Each member has the contact details of other members to facilitate easy communication. However, the researchers were told that this network was not operating as well as it could be, and could not contact relevant members via advertised contact numbers and addresses. Bachpan Bachao Andolan is connected to over 800 NGOs, civil society organisations, trade unions, teachers unions and human rights organisations in an informal network. International Justice Mission (Delhi Office) has formed a network which includes approximately 190 NGOs and community contacts across India. A network partner in need requests assistance or alerts IJM of a possible case and IJM coordinates a response. Freedom Fund brings together a number of NGOs working in human trafficking in Bihar and Uttar Pradesh. Bandhua 1947 Campaign: a bonded labour advocacy campaign organized by Justice Ventures International, International Justice Mission, Action Aid, Adivasi Solidarity Council and Jeevika. Coalition to Eradicate Bonded Labour in India (CEBoLI): national coalition that undertakes campaigns to eradicate bonded labour and push for change.

HELPLINES ChildLine (1098): a government run helpline to assist in emergency matters relating to children. The helpline was first created by the NGO Childline Foundation. Childline now has a public private partnership with the government to run the 1098 child helpline. It gets over 20,000 calls per day, has a presence in almost half (291) of India’s districts and has 600 non-profit partners. It is a 24 hour helpline and all the NGOs interviewed for this report use the helpline. It has a mandate to reach out to all 617 districts in India by 2017. Women’s HelpLine (181): is a government run national helpline to assist women in emergency situations. It was established in 2013. In Delhi the media reported that the helpline is being strengthened as it currently does not have enough resources and infrastructure to address all calls. The helpline currently has three phone lines managed by 16 staff – but this is not sufficient to address all calls, with 30% being dropped. Since 2013, the helpline had responded to 851,455 complaints, out of which 666,684 police cases have been registered. 5,310 calls belonged to kidnapping cases (which could be trafficking cases) and 12,435 calls related to child sexual abuse.

11 ‘Delhi govt to revamp women’s distress helpline 181’, The Indian Express, 15 December 2014 at < http://indianexpress.com/article/cities/delhi/delhi-govt-to-revamp-womens-distress-helpline-181/>

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APPENDIX 5: LITERATURE REVIEWED • Anti-Slavery International, ‘Poverty, Discrimination and Slavery: The reality of bonded labour in India, Nepal and Pakistan’, 2008.

• Bachpan Bachao Andolan, ‘Missing Children in India: A Synopsis’, estimated date 2012. • Centre for Education and Communication, ‘Report on Bonded Labour in Uttar Pradesh: Analysing the Effectiveness of the Programmes for the Eradication of the Bonded Labour System’, 2007

• Dasra, UN Hummingbird Trust, Kamonohashi Project, UN Women ‘Zero Traffick: Eliminating Sex Trafficking In India’, November 2013.

• Free the Slaves, ‘Recovering Childhoods: Combating Child Trafficking in Northern India’, 2005. • Human Rights Law Network, Trafficking and the Law (Second Edition), November 2011. • Justice Verma Committee on Amendments to Criminal Law, ‘Report of the Committee on Amendments to the Criminal Law’, January 2013.

• • Money Life, ‘No RTI Judgement Series: Officers clueless about prosecutions in Delhi for violating Bonded Labour Act’, 18 July 2013.

• Nair P, ‘Trafficking Women and Children in India: A Handbook for Law Enforcement Agencies in India’, supported by United Nations Office of Drugs and Crime and UNIFEM, 2007.

• National Human Rights Commission, ‘Know Your Rights: Bonded Labour’, 2010. • NHRC-UNIFEM-ISS, ‘Trafficking of Women and Children in India’, 2004. • Save the Children India, ‘Socio Legal Factors Impacting Prosecution of Trafficking Crimes In Maharashtra’, 2014.

• Tafteesh: A Sanjog, GGBK and Kamomohashi Initiative, ‘An Exploratory Study on Effectiveness and Impact of Law and the Criminal Justice System in Addressing Human Trafficking’, 2014.

• United States Department of State, Trafficking In Persons Report 2014, June 2014. • United States Department of State, Trafficking In Persons Report 2013, June 2013. • United Nations Office of Drugs and Crime and the Government of India, ‘Compendium on Best Practices: On Anti Human Trafficking by Law Enforcement Agencies’, 2007.

• United Nations Office of Drugs and Crime, ‘Responses to Human Trafficking in Bangladesh, India, Nepal and Sri Lanka: Legal and Policy Review’, 2011.

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