Shramjeevi Mahila Samiti v. State & Ors

order to provide an appropriate statutory framework for exercise of poyvers by. Committees by framing of rules under Section 68 of the Act. In the circumstances, therefore, we direct 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 childrerv. 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 franned in terms of Section read with of the Act aforementioned to regulate the exercise of the powers by the committees in particular to regulate the functioning of the. placement • \NP (CrI.) No. 619 of 2002 & Others agencies dealing witin domestic child laboui". The chairpersons of the two committees shall also be requested to remain pres.ent in the Court on that day along with the relevant recorc."

¶7• .Magnitude of the problem was taken note of in tine orders of

25.10.2004 when Chairman of Child Welfare Conimittee 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 Chairman of one of the Child Welfare Committees functioning in D.eJhi are both present in person in obedience to the direction issued by this court on 4^'"' October, 2004. The Chairman of the Child Welfare Conimittee stated 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 Committee is often handicapped in dealing with such complaints because of lack of particulars regarding the placement agency the employers. The Secretary,•••Social Welfare Department, Govt. of Delhi, on the other h^nd, submits that the qu&stion whether rules can and ought to be framed to regulate the functioning of the placement agencies is a matter that-shall have to be examined in greater detail at the Government level, before any definite step is taken in these proceedings. He seeks six weeks' time to have the matter examined and to place on record an affidavit indicating the stand of the Delhi State Government in regard to the need and possibility of framing of rules under Sections 31 and 68 of the Juvenile Justice (Care protection of Children) Act, 2000. These proceedings shall, therefore, stand adjourned to be posted again on 14^" 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 a clearcut stand taken in that regard in an affidavit shall be filed in these proceedings. Order be given dasti to both the parties,"

¶8Jharna was ultimately traced out and the custody was handed over to the petitioner. Thereafter, this petition has proceeded to tackle WP (Crl.).No. 619 of 2002 & Cithers 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. CCrllJ Mo.ga off 2009

¶9The petitioner in this writ petition as 'Bachpan Bachao', another N"G.O. in this public interest litigation, problem which is. highlighted is thai; several thousand minors are kidnapped 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 effect directions are issued to •respondent for protection of fundamental rights of such children and for their proper rehabilitation, social reiiitegration 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 stringent law to deal with such illegal placement agencies. WP (CrI.) No. 619 of 2002 & Others 9^

¶10Highlighting problem, all these placement agencies 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 inMihe GNCT of Delhi and in Saraswati Vlhar 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, ShakurpuJ.J. Colony, Rani Bagh, Punjabi EJagh, Rohini, Pitampura, Chirag Dilli, Malviya Maga.r, Chitranjan Park, Govindpuri, Sangarn Vihar, Khanpur, Kotia Mubarakpur, Jamrnia Nagar, Okhia, 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, Durnka, Godda, Pakur, Lohardugga. Districts in West Bengal; Midnapur, 24 Pargnas, Maldha, Silliguri. Districts in U.P. . : Gonda, Bahraich, Auraiya, WP (CrI.) No. 619 of 2002 & Others

i) Districts in Nepal : Sihaha, Saptri, Sunsari, Makanpur, Kanchanpur, Jhapa and Mahendrapur.

¶11The petitioner has also stated the circumstances under which this problem was brought to its notice and the steps are yet to be taken in behalf. It is mentioned on

09.01.2009, Hernbahadur had approached office of Bachpan Bachao Andolan

(I3BA) and requested to help in the rescue of his sister sister-in-law from A\jay 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 Hernbahadur was placed by Ajay Thapa in a factory and his sister, si.ster-in-law and their two friends were sent i:o 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 or his sister and other girls. This raised serious, doubts in Hembahadur's mind that the giris had been sold by A\jay Thapa he got very concerned for their welfare under these circumstances, he came in contact with BB/-\ activists 'decided to take steps for finding and rescuing the girls.

¶12The petitioner approached the Delhi Commission for Women on

12.01.2D09 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 trom some of these placement agencies 'WP (Crl.) No. 619 of 2002 & Others afready named above. 23 out of 35 girls and three boys were below age of 14. During raid, team of Delhi Commission for Women activists of Bachpan Bachao Andolan officials of Deihi Police saw a lot-of objectionable iTiaterial including pornographic CDs, illicit literature, pregnancy • test kits and contraceptives, etc. raising doubts about 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 roonns of boys. A clear picture of the same can be ascertained from 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 Deihi Government, who sent these 23 minor girls to iMirmal Chaya and Nari Miketan for a short stay. The custody of three boys was given to Bachpan Bachao Andolan - Mukti /Ashrani. it is in this backdrop various prayers including those mentioned above have been made in this writ petition. W@"e79 of 2007/

¶13This writ petition is filed by Shramjeevi Mahila Samiti.. which is an M.G.O. operating ir' Kolkata, West Bengal. Similar problem of trafficking, kidnapping, forced labour and bondage tjf 298 women WP (CrI.) No. 619 of2002 &Others p^ge 13 of54 children is spelt out in this petition. These women children were brought to Delhi from different villages of West Bengal. It is stated on reaching Delhi, they were sent to certain households and some of thenn had been shii'ted from time to time in such a mianner that the parents/relatives of the victims are now unable to get in touch with them, .iMot only the promised wages are not paid,- but the women and children are being forcibly confined against their wishes and if any person attempts to get in • touch with these victims, then those persons were threatened by placement agencies. Moreover, 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 1150 families from West Bengal had approached th6 petitioner's organization and complained their wives, sons daughters had been taken by certain placement agents to Delhi after promising to provide them with employment and tnereafter, these persons are,- not contactable it is feared thcit their family miernbers are being exploited. Accordingly, petitioner prepared a chart of the complaints being made and a -copy of the said chart dated N\L is attached. The parents/relatives of the trafficked victims brought to the notice of the petitio-ner that they have lost the contact with their wrves/children and that when they tried to contact l;he placement agencies, they were'not provided with the appropriate information regarding the whereabouts of their family members and some of-WP (CrI.) No. 619 of 2002 Si Others Ph them were threateneci 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 thern. 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 they were physically compelled to do forced labour. Some of them complained of sexual abuse by employer. Petitioner has included these complaints aiong with the earlier compilation mentioned. At the same time, 10 agents who had taken ,the persons to Delhi also contacted 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 regajxling the amount paid so as to indicate larger amounts than the amo'unts that were attualiy paid. Some thumb impressions were taken on the vouchers, which did not appear WP'(Cti.) No. 619 of 2002 Si Others Page 15 of54 genuine, in some cases the cheques had bounced. The agents were also threatened by the placement agencies. The agents were told uniess they provide new labour, persons currently worl<ing would not be allowed to leave. The agents had ^a!sc) complained that some of the children were "missing" they feared for the lives and safety of these missing children.

¶14Members 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. Circumistances 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 miaipractices adopted by the placement agencies to which she was sent to as domestic helps. Similar circumstances of two more minor girls having rescued by the petitioner are stated various placement agencies are irnpleaded as respondents. Apart from prayer in the nature of habeas corpus women 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. l/l/P (CrI.) No, 619 of 2002 & Others .

¶15We may point out that by giving ciireciiionsto the Police in this petition from time to time, most of the persons mentioned in the list in A\nnexure P-! have been rescued. s The Problem a

¶16it is in the aforesaid factual backdrop of all the three cases, issue with which we are concerned, relates to the forced child labour regulation of placement agencies. Because of the cornmonaiities of this issue in these three petitions were listed together from time to time common orders were passed therein from a particular stage. Hovi/ever., various directions were given in this behalf from time to timie 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 genesis of problem circumstances under which it arises.

¶17Trafficking in women and children is the gravest form of abuse and exploitation of human beings. Thousands of Indians are trafficked everyday to somie (.iestination or the other and eire 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 lives. The Indian Constitution specifically bans the trafficking of persons. Article 23, WP (CrI.) No. 619 of 2002 & Others " in the Funolam.ental [Rights, Part 111 of the Constitutioi^',prohibits "traffic in human beings and other similar forms of forced lalDour". Though there is no concrete definition of trafficking, it could loe said that trafficking necessarily involves movement/transportation, of a person by means of coercion or deceit, ar'd consequent exploitation leading to commercialization. The abusers, including the traffickers, recruiters, the transporters, the sellers, buyers, end-users etc., exploit the vulnerability of the trafficked person. . Tiraiffnckiimg shows piheniomfsnail inrcrease with gilobailDzaliioin]. 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

(b) Mon-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, other manifestations like call giri 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 purpose of prostitution. Prostitution is an international problem. However, we are aware of the fact that it is legalized in WP (CrI.) No. 619 of 2002 & Otners Page l&Gf54 many countries around tlie 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 emipioyment promises, false marriages and l<idnapping. But what makes women girls vulnerable are economic distress,, desertion by their spouses, sexually exploitative social customs 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 iaws addresses trafficking prostitution in particular are the Suppression of Immoral Traffic in Women Girls Act, 19,56

(SITA) immoral Traffic (Prevention) Act, 1986

(ITPA), colloquially called PITA, amendment to S!TA, 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 of the l/l/P (Ci-l.) No. 619 of 2002 & Others page 19 of54 Constitutionwhich prohibitstraffickingin human beifigs. India is also a signatory to international conventions such as the Convention on Rights of the Child

(1989), Convention on Eliirninationof ail forms of Discrimination Against •Women (1979), UN Protocol to Prevent, Suppress 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 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 traffickingof women and children for commercial sexuai 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.

¶19There may be various probiems^while dealing with the issue of- "trafficking". These petitioners seek to highlight limited facets of children being compelled to perform in circus illegal trafficking in children failure on part or the law enforcement agencies as well as society to protect fundamiental riahts of the children. The Government had itself l/l/P (CrI.) No. 619 of 2002 & Others ' r-: ^ 0 admitted the seriousness of the probiem. The report prepared by Mr. Gopai Subrarnanium, learned Solicitor General of India and submitted ' in Bachpan Bachao petition, it is sated trafficl<ingin huiman beings is not a new phenonienon. Women, children and men have been captured, bought and sold in market places for decades. Human traffickingis one of the most lucrative criminal activities. Estimates of the United Nations state that 1 to 4 million people are trafficked worldwide each year. Traffickingin 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 rniilion (Governmental sources) a million {unofficial sources) stated to be child labour;

(b)44,000 children are reported missing annually, of which 11,000 get traced;

(c)About 200 girls and women enter prostitution daily, of which 20% are below 15 years of age, • International conventions exist to punish and suppress trafficking especially against women children [Ref: Ui\i Protocol to Prevent, Suppress and Punish Trafficking in Persons also referred as the Palermo Protocol on Trafficking.] Trafficking is now defined as an organized crimie against humanity. The convention being an international convention is limited to cross border trafficking but l/l/P (CrI.) No. 619 of 2002 & Others Page 21 of54 does not address traffickingwithin tlie country. Tine definition of trafficking is significant: "... The recruitment, transportation, transfer, liar'ooring or receipt of persons loy means of threat or use of force or other forms of coercion, of aioduction, 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 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 m-^ans 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 Prcstcoc®! 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; l/l/P (CrI.) No. 619 of 2002 & Others Page 22 or 54 ^2^

(d) Employment in construction activity;

(e) Carpet industry;

(f) Garmient industry;

(g) Fish/shrimp export;

(h) Other sites of woric in the forma! informal economy. Trafficking can also be for illegal activities such as:-

(a) Begging;

(b) Organ trade;

(c) Drug peddling and smuggling. Trafficking can be for sexual exploitation, i.e.

(a) Forced prostitution;

(b) Socially and religiously sanctified forms of prostitution;

(c) Sex tourism;

(d) Pornography. Child trafficking can be to aid entertainment in sports:-

(a) Circus/dance troupes;

(b) Camiel jockeying. Some problem of "irafficking" is highlighted only to show plight of children and women, who are taken as domestic help by dubious placement agencies and forced them into flesh trade. •20. 'Corning back to the medium of placement agencies, poverty lack of opportunity are major foundaiion of trafficking. Child WP (CrI.) No. 619 of 2002 & Others trafficking typically begins with a private arrangement between a trafficker a family member, ciriiven by the family economic plight trafficker's desire for profit 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, 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 sexuai abuse; D) Child pornography; E) Child labour violations,

¶21In this order, however, our focus has to be on the issue as to how to have proper control of administration over placement agencies so exploitation of children is obliterated/ miirlimized to the possible extent, as that is the issue raised irf these petitioners are preferred. 22, The main concern of all the counsel In these writ petitions was that there was no con'iprehensive legislation regulating the placement agencies to take care of the menace. On the other hand, there l/l/P (CrI.) No. 619 of 2002 & Others were multiple statutes and authorities under those statutes challenge was as to how to achieve the. coordination to' remove/disconnect them. It would be of use to mention that this •has been focus of the various jDroceedings 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 thes2 proceedings from time to time need a look, as that would pave the way for final direction, which we propose to issue in this order. In the order dated

04.10.2004, this Court had highlighted two issues, which arise in these writ petitions, viz., tracing and production of children on the one hand and functioning of different placement agencies working in NCT of Delhi on the other hand. However, directions were given to the Government of NCT, Delhi by that order, to provide framework within which the placement agencies could be regulated monitored. Orders dated 04,10.2004 is "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, F(eports 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 !\ICT 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 earned on by them engage themselves in placement of \NP (CrI.) No. 619 of 2002 & Otlv^rs Paqe 25 of 54 children in various establishments including as donnestic help. There is, according to Ms. IShat, no statutory control over the functioning of these agencies. The result is that children who. are either picked up from streets or brought froms various other States to Delhi are first placed as .domestic help and later shifted to other more ha,zardous 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 Protection of Children) Act 2000. She submits 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 said provision nugatory. She states Child Welfare Committees functioning in Delhi received a number of complaints regarding abuse of the children worki.ng as domestic helps in households. Verification of 'these complaints have, according to her, proved that tiie 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 sunnmoned for perusal would, according to the learned counsel, enable this Court to issue directions for effectuating the provisions of the .Act. Ms. Mukta Gupta, leai'ned counsel for the respondent, on other hand, submits Government of Delhi would have no objection to the issue raised before this Court being examined appropriate .guidelines being evolved regulating exercise of powers by 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 other establishments remedial steps which committees have taken in this regard. She further states that the State Government can examine matter more closely in order to provide an appropriate statutory framework for exercise of powers by Committees by framing of rules under Section 68 of the Act. !n the circumsl;ances, 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 conhplaints received by them about child abuse, in case where children are laced v\/ith 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 ih'dicate whether any rules have been framed or can be framed in terms of Section read with of-the Act aforementioned to \NP (CrI.) No. 619 of 2002 & Others "dcje 26 of 54 regulate the exercise of the powers by committees and in particular to |-eciulate the functioning of the placement agencies dealing with domestic child labour. The chairpersonsof the two committeesshall also be iec|uested to remain present in the Court on that day along with the relevant record. Post on 25'^" October, 2004. Order Dasti."

¶23Pursuant 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 miaking registration under the Delhi Shops and Establishrneni:Act mandatory, whereby the placement agencies could also be regulated. The necessary amendment in the aforesaid Act has since been made. Mo doubt, that may be a big step for regulating the placeme.nt 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, counsell for the petitioners were asked to prepare a comprehensive'note indicating the existing legislaticui or rules and in the absence of any legislation, to suggest the lines oii 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 supervising working of Placement Agencies provide employment to women and children as domestic help. According to Learned counsel for the Petitioner'some steps need to be taken to ensure 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 wonnen children, who WP (CrI.) No. 619 of 2002 & Others 9^ have been employed as domestic servants, have come to the notice to the Petitioner and others. Learned counsel for the Petitioner says that she will prepare a comprehensive not which indicates 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 she will prepare 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 clea^" that the present Writ Petition pertains only to the registraiion, regulation, monitoring and supervision of Placement Agencies. List the inatter on 23''" lanuary, 2007."

¶24In resjoonse, Ms. Arpita Bhat, learned counsel appearing for the petitioner in VVPfCrl.) Mo,619 of 2002 brought to the notice of this Court legal position contained, in different,.statutes in the following manner: "REGISTRATflOM; As far as registration is concerned, proposal of the Government to register them.under Delhi Shops Establishments Act and make the registration nnandatory 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 following proposal. Domestic workers who are being placed by the agencies can be classified as children and adults. Children will be between the ace group of 14 and 18 years and the adults persons above ''.8 above. CHCLDKEW; There are various dealing with the rights welTare of children including children who are working. Three legislations which can be mentioned in this context are: i. The Child Labour (prohibition regulation) Act, 1986; ii. The Bonded Labour System (Abolition) Act, 1976; ill. The Juvenile Justice (care and protection of children) Act, 2000; WP (CrI.) No. 619 of 2002 & Others pgge 2S of54 n CHILD LABOUR (PRQiHlBITlON AIMD KIEGULATIOINI) ACT, 19^®;' . It has been seen domestic labour is not. given 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 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 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, ideal approach, if at ail the classification was necessai"y, would have been to classify on the basis of processes rather th£in the end product. From October 10, 2005, 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 eiTiployed, 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 child more vulnerable, took some initiatives had passed some local notifications guidejines which had been in force before the notification ot 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 \/Vori< 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 1==^ April, 2004. Amendment to the Minimum wages Act for the state of Karnataka, Stipulations have been laid out for remuneration due to a domestic help based on ttie nature of the work as well as the number of hours put in, lytensils - 45 minytes - ?150 Washing Utensils, clothes house keeping, taking care of children-8 Hours, ri600 There is also a notification issued by the Government of Karnataka banning employment of child domestics by Gove rn rnent em p Ioyees. Even though law has come into force, there has not been any 5Ch-..-;me or policy or guidelines which would WP (CrI.) No. 619 of 2002 & Others indicate manner in which children alread\y in employment would be rescued and rehabilitated. • Since "domestic worl<" 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 connpensation 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 CHfLDREM) ACT, Children are governed by the Juvenile Justice (care protection of children) Act, 2000. The Juvenile Justice Act, which is supposed to provide for the care, protection, treatment, development and rehabilitation of neglected or delinquent juveniles has certain mandates. The long title of the Act reads as under: "To provide for care, protection, treatment, development rehabilitation of neglected or delinquent juveniles and for the adjudication ot certain matters relating to, 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 A\rticle (15), clauses

(e) and (f) of Article 39, Articles 45 and 47 also impose on the State a primary responsibility of ensureing all the needs of children are met and that their basic human rights are fully protected. On 20'" 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 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 existing -law relating to juveniles bearing in mind standards prescribed in the Convention on Rights of Child, the United Nations Standard iv/|inimum Rules for Administration of Juvenile Justice, 1985 (The Beijing Rules), United Nations Rules I'or Protection of juveniles Deprived of their Liberty (1990), all other relevant international instruments. To achieve this objective the Juvenile Justice (Care Protection of Children) Bill was introduced in Parliament. PREAMBLIE WP (CrI.) No. 619 of 2002 & Others \ "An /-\ct to consolidate amend law relating to juveniles in conflict \/vith law and children in iieed of care and protection, by providing for proper caro, protection and treatment by catering to their development needs,, any by adopting a child-friendly approach in 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 oi' care and protection. According to this definition: "2. a)... d) child in need of care and protection nneans a child-

(i) who is found without any home or settled place or abode and without any ostensible means oF subsistence,

(ii) who resides with a person (whether a guardian oF the child or not) and such person-

(a) has threatened to kill or injure child there is a reasonable likelihood of the threat being carried'out, or

(b) has killed, abused oi' neglected some other or children and there is a reasonable likelihood of child in guestion 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 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 is likely to be inducted into drug abuse or trafficking,

(viii) who is being or is likely J:o be abused for unconscionable gains,

(ix) who is •v'ictirn of any armed conflict, civil commotion or natural caiamitv:" WP (CrI.) No. 619 of 2002 & Others . I

¶25By an amendment in 2006, working ciiildren are also included under definition of children who are in need of care protection. Children who are placed as domestic servants clearly fall under the definition of the child in need of care and protection. To address need of children who are in need of care 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 cases for care, protection, treatnnent, developnnent 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 they are protected, cared rehabilitated if required. The CWCs have under them various fit institutions which are set up by i\lon-Governmental organizations as we^l 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 definition of a "child in need of care and protection", the authorities under Act are under a mandate to ensure these children are protected rehabilitated. The CWCs also have been taking WP'(Crl.) No. 619 of 2002 & Others ' action against individual employers who have beeii withholding wages, making childrenwork in exploitativesituation etc. 9,!yuuL y a; -With respect to adult women who are employed in various household, the regulating mechanism prescribed under the Irater State Magirant WorCcinniein (IRegylation of EsTiiipiifTVinnic^Bitandl Condiitiions ©ff Serviicce]) Act,, 1979 can be adapted. The Act is notified and implemented in the State of Delhi. This Act is an act to regulate employment of inter-state migrant workers. Under this Act, there is compulscry licensing of contractors. It appiies to every contractor who employs or who employed five or more inte.r-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 establishment, other than a mere supply of goods or articles of manufacture to such estabiishnient, by the employment of workmen or to supply workmen to the establishment, includes a sub-contractor, Khataclar, sarclar, agent or any other person, by whatever name called, who recruits or employs workmen;"

¶26While this Act has been made applicable primarily to workers in 'the formal sector, the definition of the contractor squarely covers manner in which placement agencies function in the absence of a direct legislation to deal v\/ith placement agencies for WP (CM.) No. 619 of 2002 Si Others ' )<By the domestic heijo, 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 miade. A combined reading of aforesaid legislations will empower the Government to:

(a) Register the placement agencies both under the Shops Establishinents A\ct as when registration becomes mandatory and under the Inter State Migrant Workmen (Regulation of Employment Conditions of Service) Act, 1979 with immediate effect;

(b) Direct the licensing authoriries under the Inter State Migrant Workmen (Regulation of Employment Conditions of Service) Act, 1979 to grant licenses to the placement agencies as "contractor" for a specified period of-lime and make them furnish r'ecords as per the requirements under the Act;

(c) Direct the inspectors appointed under the Child Labour (Prohibition regulation) A^ct, 1985 to ensure 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 Licensing authority. under Inter State Mligrant Workmen (Regulation of Empioyment \N'P {Cr\.) No. 619 of 2002 & Others Conditions of Service) Act, 1979 to'SLipply a copy of their records to the Child Welfare Comn-iittees who in turn will ensure that children who are placed by these contractors are cared for properly;

(e) Ensure that the Child Welfare Comniitteesare enabled by framing niodel rules with respect to worl<ing 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,

¶27The 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,

¶28On 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, \A/e will advert to these suggestions as well giving our directions.

¶29We may point out that Mr. Colin Gonsalves, learned Senior counsel who appeared in WP (CrI.) No. 879 of 2007, also highlighted WP (CrI.) No. 619 of 2002 & Others 1-^-^ issue and gave some further and additional suggestions, which are • contained in the wrii;ten submissions filed by the petitioner in this writ petition.

¶30Before we advert to these suggestions direction, which are required to be issued on that basis, it would be necessary to comment 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 other • counsel as well as the Court in finding the solution to the problems.

¶31We 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 "lUndiain Chald ; India's Eteiriiiiaili Hope siinid Fytyre" in which not only the extent ramification of the problem, so.me, 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 magnitude thereof, learned Solicitor General has suggested 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.: WP (CrI.) No. 619 of2002 &Others Page 35 of54 "'.12. Every state government must have a • set of guidelines for MGO's which want to assist in inquiries/fact finding rescue operations. It is submitted guidelines, published in Bernard Boetoen's -"An MGO's PmCTSCAL GUIDE IN TWE FSGNT MGAIMST CHSLD TRAP Flic KBMG" are significant and should be adopted as valuable guidelines. a) Evaluation of existing or potential risks for the child involved, MGO undertaking enquiry/investigation/fact-finding/rescue and, foi' eventual partners (persons, association etc) is important. Wrong information may be sent out to diveri: attention from a real case of trafficking. There is also a risk for those engaged in investigations rescue operations of being trapped into false accusation; b) Never simulate being the trafficker alone, in order to establish proof (it can happen representative of an NGO judges that she/he can establish proof by playing 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 follo\A/ 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/inve^tigation/rescuing child or, in facilitating participating^ in legal action for protecting the child and prosecuting the offender; d) Where accessibility to child, her/his farniiy/relatives/friends, people in neighborhood is possible, use non-threatening, non--intrusive questions with great care and sensitivity to seek any information; e) Evaluate risk of further victimization of the child and evolve ways and means to-become a companion confidante for victimized child; f) Maintain confidentiality' of the child, avoid taking pictures, videos, tape recording etc under no circumstances should this be breached as it could endanger the child's life; g) Be prepared to help child in terms of immediate removal from victimization' ensuring trauma counseling; )oO WP (CrI.) No. 619 of2002 &Others Page 37 of54' my 1 ' 7 h) Reliability of the information received and the fact of trafficking must be confirmed by reaffirming 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 elements that constitute a case of trafficking; on description of the location, dates, time, numbers, nationality description of persons present, their presumed age, their clothes, the vehicles used for transporting the victims, the length of tiie trips Inight, day etc...); the brutality suffered, the food and drinks given, the financial, transactions etc.; j) Put everything into writing, and indicate what is verified what is assunned, what is direct testimony and what.is indirect testimony through a third party, what are rumors etc. This will help • analyze 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 investigation. Even while assisting in the prosecution of offenders as a witness, the written observations prove a great help. Never forget at a later date investigator will be called in the judicial process as a witness, information will be submitted for cross-examination by the counsel for the defence; k) Keep the witnesses and victims anonymous in the first written report. Only deliver the names when submitting to the police or the CVVC or at the judicial stage;

i) Be . ready to pufsue . the case (complaint/FIR/evidence/cross-examination/psycho-legal support to victim/rehabilitation reintegration of victim)."

¶32Thereafter 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: 1/l/P (CrI.) No. 619 of 2002 &Othei'S Page 38 of54 "13" The police must follow certain guidelines as well. It following guidelines should be is submitted mandated:- IV. V. vi. vii. viii. Care must be taken to ensure confidentiality of the child and due protection must be given to her/him as a witness; The detailed interview of the victim should be done preferably by crisis intervention centres/members of Child Welfare Committee under Juvenile Justice Act. There should be adequate breaks and intervals during the interview with a child victim: If the police employ a child friendly approach to the entire investigation, 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 i'\!GO/CBO. Support persons for child should be contacted and in their absence, any civij society group working with/for children or members of CWC (whoever the, child feels comfortable with) could be asked to present; Due care must be maintained to attend to issues like interpreters, translators, record maintaining personnel, audio-video recording possibilities etc.; As far as possible, same investigation officer must follow .up case from investigation stage to the trial stage; There should be provision of food and water as well as toilet facilities for the child in the police station and the hospital; No child should be kept in a Police Station; Where a special juvenile police unit or a police officer has been designated to deal with crimes against children and crimes conimitted 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. " WP (CrI.) No. 619 of 2002 & Others r1

¶33Certain 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 tacl<ling problem of child labour, child marriage, trafficking of children for 'begging, trafficking of illegal inter-country adoptions, exploitation Qf children for pornography, removal of human organs without authority that violates the provision of Transplantation of Human Organs Act, 1994. In the factories including hazardous industries, however, having in mind the scope of these writ petitions, we are not recording same to express with hope 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.

¶34Notwithstanding various laws benevolent/welfare schemes, the reasons because of which the problem persists in is alarming .magnitude as highlighted by the Ministry of Women Child Development, are reproduced in the aforesaid report: ,c3CC Policies, procirarnmes 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 econoniic social hardship challenges and thus be able to take care of their children, as well as to efforts to raise awareness of o|| India's people on child rights child protection situation. PooB^lann'sngvand coord!Situation i/VP (CrI.) No. 619 of 2002 & Others

i) Poor implementation of legislations; ?xistinq law; liv

ii) Lack of linkages with essential latei'al services for children, for example, education, health, police, judiciary, services for the disables, etc;

iii) No map|;)ing 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 programmes/services; convergence oP

v) Weak supervision, monitoring evaluatioi"i of the juvenile justice system, Servsces ariB ne€(iH€slble reSatsve to the inieedjs

i) Most of the children in need of care and protection, as well as their fannilies do not get any support services;

ii) Resources for child protection are meager and their utilization is extremely uneven across India; outreach 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 ail;

v) hack of. services addressing issues like child marriage; female foeticide, discrimination against the girl child, etc;

vi) Little interventions for children affected by MIVAAIDS, drug abuse, militancy, disasters (both rnanrnade natural), abused and exploited children and children of vulnerable groups like commercial sex workers, prisoners, migrant population other socially vulnerable groups, etc;

vii) Little interventions for children with special needs, particularly mentally challenged childi'en," •Po€>ir m frrasth'ucture

i) Structures mandated by legislation are oftep inadequate: [(CrI.) No. 619 of 2002 & Others ''age 41 of 54 I'/

ii) Lack of institutional infrastructure to deal witli 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.

i) inappropriate appointments lio key child protection services leading to inefficient non-responsive services;

ii) Lack of training and capacity building of personnel working in the child protection system;

iii) inadequate sensitization capacity building of allied systems including police, judiciary, health care professions, etc;

iv) Lack of proactive involvement of voluntary sectors in child protection service delivery by the State UT Administrations;

v) Large number of vacancies in existing child protection institutions, 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 Intra-state transfer of children especially for. their restoration to ;families not provided for in the existing schemes. V. Lack ot standards , of care (accomniodation, sanitatio.'i, 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; vli. jViost 24-hourshelters do not provide all the basic facilities required, especially availability of shelter, food and mainstream education; : WP (CrI.) No. 619 of 2002 & Others ) 1 viii. Not all programmes address issues of drug abuse, HIV/A1D5 and sexual abuse related vulnerabilities of children, ix. None of the existing schemes address the needs of child beggars or children used for begging; X. Minimal use of non-institutional care options like adoption, foster care 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 cliiidren above 18 years are not available in all states, where they do exist they are run as any othei' institution under the JJ Act, 200C.

¶35The 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 Constitution. Points of implementati(3n must be identified. Each state government must identify an officer who is responsible for implementation of schemies in relation to children. There must be a parallel linkage between a point of coptact of the Collectorate/Executive Administration with a point in Legal Aid i.e. the Executive Chairman of the State Legal Siervices Authority a point in the NGO sector/civil society. Similarly, points must be identified in each zila paiishad panchayat simiti and gram panchayats. In fact, presiding officers.of gram nyayalayas may also be encouraged to identify children who are vulnerable and who need protection. The integrated Child Pi'otection Scheme is presently in place. It seeks to institutionalize essential services strengthen structures; it seeks to enhance WP (CrI.) No. 619 of 2002 & Others capacities at all levels; it seeks to create database knowledge base for child protection. s&rvices; 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 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 toster care arrangements have been exhausted;

v) All institutions should disclose details about child,ren in their care and make sure that those free for adoption are filed and recorded with the State Adoption Resource Agency

(SARA) and C,AR.A, with all supporting documentation of authorization of such adoption from CWC;

vi) Inter-state coordination to match 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) ivionitoring, regulating promoting concept 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 ethical code of conduct. Those agencies shall be reporting to will be subject to rigorous auditing and supervision by responsible state bodies. 1/1/P (CrI.) No. '619 of 2002 & Others ps,ge 44 of54

¶72The ICRS programmes are now brouglit under one umbrella and are as follows; a) Care, support and rehabilitation services through childdine; b) Open'shelters for children in need in ui ban/semi urban areas; c) Family based non-institutional care through sponsorship; foster care, adoption and aftei'care. .'kAA /\AA

¶75In view of the directions suggested, the Child Welfare Committee miust directly come under the supervision of the District Judge/Judge of the High Court, it is submitted above implementation must also be overseen by a Court-monitored mechanism.

¶76There must be an annual repoit by CARA. The said report must be scrutinized by a secretary incharge of family social welfare. On 9'^" September, 2009, an office memorandum was issued by the Ministry of Home Affairs.

¶77It is submitted that the said scheme requires to be implemented l;)y all the States. In view of the above circular dated 9'" 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 miay be im-plemented by all the State Governments mionthly reports be sent to the central government. XXX XXX XXX o3. It is submitted that implementation of schemes for children must not be vitiated by hurnoresque choices but based on eth.os spirit of republic constitutionalism. !t is submitted that the ichonography of child rights vuill require not only active cooperation but a recognition of reality children are undoubtedly harbingers of future. The safely to a society lies in the manner of discovering ignipotent character of youth and children and particularly their capacity to be genuine, authentic, individuals of seif-worth self-esteem. A society which ignores children or is unconcerned abo.ut 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 a mere imprecation towards charity is inadequate, a trusted infrustrable right ethos must emanate from constitutional provisions. It is submitted constitutional provisions are not only Mntended to be invocative, the-y must be evocative in action. It is WP (CrI.) No. 619 of 2002 & Others 45 of54 respectfully submitted that rescue operations for children must not be mere ligatures but must actirally 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 reforms for educating the poor and the weal<er 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 manner in which delivery takes place fully that governance nneasures 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 reducvxl into marcescent hopes. Under these circumstances, it is submitted that suitable directions may be issued by this Court in the larger interest or justice.

¶04It is submitted a direction be issued all the Central Government/State Governments/Union 1 erritoi'ies will cooperate to bring into effect the direction suggested above."

¶36Since respondent/Government itself had volunteered 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 of the Constitution, we hereby direct the Government of MCT of Delhi ,as well as Government of India to take steps in manner suggested above treating same as directions of this Court given in this order.

¶37In addition, based or^ 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 problem multiple statutes with multiple' authorities - for lack of coordination disconnect WP (CfI.) No. 619 of 2002 & Others , \( i among them - are not able' to tackle 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 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; i(a} Seek recovery and wages, (b;: Ensure freedom of movement,

(c) Access shelter option in case of abuse before being able to go home. Feasibility of having control of SDMs of the areas on these placement agencies should also be worked out,

(ii) Till that is achieved, which is allowing term measure, immediate concerned respondent authority to ensure as to how various enforcemient agencies of, different statutes are able to v^/ork in a coordinated cooperative manner. Necessary guidelines should be issued or rule^ framed in this behalf. If possible, single window enforcement agency be created so that the NGO on behalf of such victims are able to \NP (Crl.) No. 619 of 2002 &Others pgge 47of54 lO approach the said agencies instead of knocking' the doors of different authorities.

(iii) For more effective implementation-of Juvenile justice [Cure and Protection of Children) Act 2000 and Delhi Comnnission 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, Faijure to register within 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 children in homes located in Delhi. This suggestion is made in view of the apprehension ' expressed during discussions Vi/ith the Labour Department 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; WP (CrI.) No. 619 Of2002 & Others Psge 48 of54 )f ^ Z) Number' of persons, who are employed, through the agencies, their names, ages their addresses; 3) Details of salaries fixed for each person; 4) Addresses of the employers; 5) Period of employment; 6) Mature of work; 7) Details of 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 discussions, Labour Department had indicated information would be put up on the website. Till such time,' information should not be put up on the website, the records may be made available by the labour Department to the -CoiTimiss ion and. the Committee.

¶38Various 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 WP (Crl.) No. 619 of2002 &Others ' P,,,, 43 ------ /A stated by the petitioner & as stated in paragrtlph 38 onwards herein be treated as the'direction of this court. We also direct the j''espondent authorities to consider the following suggestions at the earliest ; miissiioin OBid the Lopimotteei;; a) The Committee and the Commission will have a duty to go through records provided iDy Labour Department. b) The Corrimiittee Commission win verify information and the cases where information is found to be, inadequate, seek further information from placement agencies after duly sunimoninj them. The Cornmitteie shall be authori,zed to sue services of 'Childline', a service set up by the Ministry of Women and Child Development, Union of India and managed by MGOs to verify information in appropriate cases. The Commission shall identify agencies who vv/ould assist them in verifying information , with respect to adult women, c) The Comimittee 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 Commission shall . decide complaints made within a period of 30 days. WP (CrI.) No. 619 of2002 &OUiers ' p^ge 50 of54 ]Ly^ AdiydicatBoo ©f Slhe Compllaio-Tits; The Committee and the Commission may hear the foilovving types of cases: a) Withholding of agreed wages; b) Harassment inciuding harassment by employer at the hands of the placement agencies; c) Harassment and/abuse by '.placement agency proprieto r/sta ff a11 he ir pre rnise s or a t 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 inciuding medical care and food. Ptmers of the Commnttee/ComifTriinssioini:

(a) A committee and the commission will hrave powers to ^ summon the placementagencies 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 appropridte 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; WP (CrI.) No. 619 of2002 &Others 5j )tV

(e) Direct placement agency to comply with agreem:::'nt with employer or return commission where the terms are not complies with;

(f) Impose fines on the placement agenci'ss where it is found that terms of the agreement are njt followed;

(g) Direct legal aid to the child/woman where a criminal offence has happened;

(h) Direct employers to inform local police or the Committee/Commission in cases where 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 emplo\/ment direct agency to return commission paid by employer back to employe;',

¶39The Petitioner in W.P. (CrI.) Mo.879 of 2007 has referred to Police Circular issued by OCR, 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 agencies enroll applicants on the basis of formal applications containing full details iiicluding l/l/P (CrI.) No. 619 of 2002 & Others Page52 of54 IlV- .photographs contact addresses of the applicants, details of previous employers, ei;c. d) Verification of domestic worl<cers is to be done by the Police. The DCP has filed the response wherein i': 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 law order, security, inquiries investigations, etc. ft is also mentioned that to keep a check on maintenance of registers, etc. of the placement agencies would not be feasible in the current scenario of heightened security concern. Ii is stated Circular is merely an executive instruction non-connpliance 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 shali reconsider feasibility of i,miplementation of the instructions contained in the said.

¶40Another direction, which is sought by th's petitioner pertains dues of 83 domestic workers, which are yet to be recovered from the placenient agencies or the employers. It is submitted since children were exploited without Police or Labour Department acting to protect them, the Government or iMCT, Delhi l/l/P (CrI:) No. 619 of 2002 & Others -----------

% 1) 2) IN THE HIGH COURT OF DELHI AT NEW DELHI WP (CrI.) No.619 of 2002 With WP (CrI.) No.879 of 2007 Reserved On: May 24, 2010. Pronounced On: December 24, 2010. W.P. (CrI.) No.879 of 2007 SHRAMJEEVI MAHILA SAMITI through : VERSUS STATE & Others through: W.P. (CrI.) No.619 of 2002 KALPANA PANDIT Through: VERSUS STATE Through: . . . Petitioner Mr. Colin Gonsalves, Sr. Advocate with Mr. Divya Jyoti Jaipuria, Ms. Ritu Kumar and Mr. Tarig Adeeb, Advocates. ...Respondent Mr. Pawan Sharma, Standing Counsel for the State. Mr. Sachin Dutta with Mr. Shariq Mohammed Ms. Poorva Nanawati, Advocates for the UOI. Ms. Meera Bhatia, Adv. for Labour Department. . . . Petitioner Ms. Aparna Bhat with Mr. David A. Advocates. . . . Respondent Mr. Pawan Sharma, Standing Counsel for the State. Mr. Sachin Dutta with Mr. Shariq Mohammed Ms. Poorva Nanawati, Advocates for the UOI. Ms. Meera Bhatia, Adv. for Labour Department. CORAM HON'BLE MR. JUSTICE A.K. SIKRI WP (CrI.) Nos.879 of 2007 and 619 of 2002 ' \ 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, I. For orders, see WP (CrI.) No. 82 of 2009. DECEMBER 24, 2010 pmc WP (CrI.) Nos.879 of 2007 and 619 of 2002 JUDGE (AJIT BHARIHOKE) JUDGE TlhaE H0GH COURT OF irjEU-ailAT Mt&W/ DLIL.JJ (Crl.) [N3o"a2 of 2009 WP (CriiJ No.SIS)of 'iOOi With %; 1) Mo"S2 oir .1 Reserved On; May 24, , PronouncedCM"'; Decembei ^ 2) IBACIHIIPANI EJACHAO &OR! Petitioners I , - Mr H5.. Phoolka, Sr. Advocate tl^iough . . Tivv/ari,Advocate. VEPxSU yiNlOlM OF WKiA &i OTiHllERS .Flespondent throuqh: Mr Pa»an Sh.rma, Standing Mohammed Ms. Pooiva Manawati, Advocates^and Baldev Malilc, /-Xdvocate lor l UOI. ,,, Ms Aparna Bhat wiLli is. iviadhulilo Advocates for the Ms'^MeeraBhatia,Adv. for Labour fCtjl1 li\lo"lg79of throu_gh.: VERSUS TATE & Others Department. Petitioner Mr Colin Gonsaives,Sr. Advocate with ivir. Divya Jyoti Jaipuria, Ms. p.itu Kumar and Mr. Tariq Adeeb, Advocates. .Respondent I h- Mr, PaN/van Sharma. Standing Counsel for the State. W (Crl.) No. 619 of2002 &Others 3) •y 2002 Mr Sar-'nln Dutta with Mr. Shaiiq Mohamrf^pcl Ms. Poorva Nanawati,Advocatesfor the UOl. IVis, Meera Bhatia,Adv. for Lafpoui Department. / KALiPAlNlA PAND8T' Th,-oucih: Ms. Aparna Bhat with Mr. David , Petitioner 1. 3. VERSUS Th rough: A. Advocates. . . . Respondent Mr. .Pawan Sharma, Standing Counsel for the State., Mr. Sachin Dutta with Mr. Shariq Mohammed Ms. Pootva Nanawati,AVdvocatesfor the UOl. Ms. Meera Bhatia, Adv. for Laboui Dep&rtnient. jySTDCEAJC SDBOT HON^BLE M1P^= JUSTICE AJDT ilOIIC^ WhetherReportersof Local,newspapersmay be allowed to see the Judgment? // To be referred to the Reporteror not? , . , i'^ Whetherthe Judgmentshould be reportedin the Dig.sL. 1. in all these three writ petitionsfiled mpublic interest,adistuibing problem which' our society faces, day in and day out, has been highlighted. This conundrumrelatesto child trafficking. It is this menace prevailing in our society, which has ioeen raised in ali these writ petitions, albeit from differentperspective. However, the primary objectiveand aim of all these writ petitionsremains the same, viz., how to eradicate,or at least reduce to significant ^ , Paqe 2 of 54 WP (CrI.) No. 619 of2002 &Others 2. M'lo issue w€! shall take in order to appreciate the l^su.., level, this peril, note of the facts -whid-,have led to the fiHng of thesewrit petitions. nv K. " Kalpana Pandit is the petitioner.n this case whose daughter ,s espoused by sociai activist/Advocate,i.s. Aioarna r3hat. The petitioneris adomesticservant(Hiiteratelady), driven by poverty, working as dornest.servant,n various houses tron. time to tin.e to earn the minimum livelihoodfor her family and sustainingthe family for fulfillingthe daily needs. Her family has roots in West Bengal, However,due to acute poverty and incapableto get any employment,S