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Trafficking of Tribal Girls: Placement Agency Legislations

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By Ankita Surabhi, Law Officer , Shakti Vahini

Human trafficking - Concept PhotoLabour mobilization in India happened as a result of large scale privatisation, modernisation and the subsequent need to cater to the rising middle and upper class of economically empowered migrants who moved to the big cities. The emergence of Private Placement Agencies in metropolitan cities has galvanised this process on the pretext of providing regulated labour while incessantly depriving those who fall in their trap, of their basic human rights.

There has been an increasing trend of women and children being trafficked from the states of Jharkhand, Chhattisgarh, Orissa, Assam, West Bengal and Madhya Pradesh for the purpose of labour. The trafficking of children is being undertaken by illegal placement agencies. Many of these placement agencies are operating from Delhi and the NCR region. These placement agencies are earning huge profits by bringing in children from these states.

Compelled by the socio-economic conditions, a large number of women and children are procured from economically backward areas to big cities for work. In many of these cases, these children are being trafficked by middle men and agents who are bringing them to the employers in the city by extending meagre advances to the parents and giving false assurances of lucrative jobs etc. These children work under highly exploitative situations like very long working hours, paltry wages, unhygienic and most difficult working conditions. Such children mostly work in industries like zari making, jewellery units, domestic help, dhabas, tea stalls, etc. Very often, they are kept within the confines of the work places and therefore, lack any kind of freedom and are vulnerable to abuse. The modus operandi of the placement agencies are to recruit children from far flung tribal village by luring them with the promise of getting jobs. Once these children reach the capital they are traded off to prospective employers who pay an advance of Rs.30000 to Rs.45000 plus Rs.10000 to Rs.15000 as placement agency charges. Once the money has been paid the custody of the children is given to the employers. The children have to work 10-14 hours daily without any salaries or holidays. The advance money taken by the placement agencies never reaches the family of the child. After sometime these children become bonded and they are forced to work. Many such children have reported physical and sexual abuse, torture and violence. It is only when information reaches to police about their conditions the rescue takes place.

The placement agencies continue to work illegally in spite of various orders from the Delhi High Court and the Placement Agency Executive Orders. The Law enforcement and Department of Labour has failed to register them and bring them under scrutiny.

Many of these placement agencies are shady organized crime rackets specializing in child trafficking. They regularly change their addresses as well as they change the name of the firm to escape prosecution. Those agencies also have very strong network in the source areas. They threaten the parents and prevent them from lodging complaint. Investigation have proved that these agencies have been involved in trafficking of thousands of children and are also responsible for the missing children figure in the state. Crime Branch Delhi Police in collaborations with various organizations have undertaken rescue operations of hundred of such children in the last five years. In the year 2014 high profile traffickers running placement agencies have been arrested and are being prosecuted for crimes related to Human trafficking in Delhi and Jharkhand. Chattisgarh Police also arrested several traffickers involved in placement agencies.

Domestic workers have always been out of the ambit of the prevalent labour laws, and suffer due to lack of a comprehensive regulatory mechanism. Economically challenged states like that of Bihar, Uttar Pradesh, marginalised sections in the North-East, Orissa, Jharkhand, West Bengal, Chhattisgarh and the like have witnessed exponential growth in trafficking of persons, mostly women and children owing to a plethora of reasons. As a result of capitalisation, there has been a social upheaval where the needy poor due to lack of options or failing resources end up in big cities often in the nature of contemporary slaves, while the placement agencies due to lack of adequate laws, escape liability.

The issue was raised and dragged to light in the case of Bachpan Bachao Andolan v Union of India[1], where the High Court of Delhi gave elaborate directions for regulation of placement agencies. The Court took cognizance of the fact that children employed in circuses had gruelling working hours, were deprived of basic living standards and were always on the short end of receiving earnings made through their hard work, which was almost always pocketed by the owners. The Delhi Government subsequently cleared an Executive Order dated 25.09.2014, issued by the Labour Department in compliance with the Order dated 24.12.2010 and High Court decision in BBA v UOI and Others[2]., in December 2013.

Before that however, awaiting notification, the legislature of Chhattisgarh passed The Chhattisgarh Private Placement Agencies (Regulation) Act, 2013[3].Thereafter vide notification dated 21.08.2014, the State Government passed the Chhattisgarh Private Placement Agencies (Regulation) Rules, 2014 in exercise of the powers conferred by Subsections (1) and (2) of Section 12 of the main Act, under which a detailed set of rules were released in all matters connected and incidental to the operation of Private Placement Agencies (PPA) in the State. The Executive Order however, extends to all agencies providing domestic workers in the National Capital Territory (NCT) of Delhi, whether their/office place of business is situated within or ou
tside the NCT of Delhi.

In a remarkable move Chhattisgarh became the first state to draft a state law to check the functioning of placement agencies through The Chhattisgarh Private Placement Agencies (Regulation) Act and Rules, 2014. Chhattisgarh has been prominent grazing ground for trafficking of girls and women to metro cities to work as domestic works where they usually get further exploited, abused, pushed in flesh trade or they go untraceable. This is largely due to poverty, illiteracy and large chunks of the population residing in forest or hilly regions in tribal areas. Recognizing the need for stringent regulations all offences committed under the Act are cognizable and non-bailable.[4] The Act under section 15, allows for breathing ground to the State Government to make any additional provisions to effect the provisions of the Act. In order to ensure proactivity and immediate operation, no Orders in that regard shall be passed after the expiry of two years from commencement of the Act. Under Section 3 the state government can appoint any person not below the rank of a Sub-Divisional Magistrate as the Controlling Authority and also define the limits of exercise of power conferred on him, by or under the Act. Under section 2 (1) clause (h), a PPA is defined as an organisation providing work to women as domestic workers beyond the boundaries of the state.

The Chhattisgarh Act and Rules

4 Application for Licence

One of the most important steps is the requirement under section 4 for a PPA to possess an operating licence issued under the Act, and for all the establishments operating from before, same should be obtained within 90 days of notification of the Act. Application for grant and renewal of licence is made under section 5, to be read with Rule 3. Every application for grant of licence is made to the Controlling Authority[5], in FORM I[6], to be submitted along with fee in the form of crossed bank draft/demand draft or banker’s cheque payable to the same, as under:

  1. A PPA operating in one district, or more than one but less than five has to furnish Rs. 5,000/- as fee along with Bank Guarantee of Rupees one lakh.
  2. A PPA operating in whole of the state has to furnish fee of Rs. 25,000/- and Bank Guarantee of Rupees. 1,00,000/-.

Each application is delivered to the Controlling Authority (CA) either personally or through a representative, who on receipt of the same, shall note the date of receiving the application, and provide an acknowledgement to the applicant. Under section 5 (2), the Controlling Authority shall investigate in respect of the application, as per the procedure prescribed, which is laid down in Rule 4, under FORM II[7], to be filled in by the applicant. In case, the applicant is a company or a firm, separate Form II for every proprietor, majority shareholder, partner or director, should be enclosed is they are also applicants. The Controlling Authority or the Authorized Officer (AO)[8] shall forward the application to Superintendent of Police (SP) of the concerned district where the agency wishes to commence its operation, who would verify contents of the application, and make such inquiries considered necessary for the same. After verification, the CA or AO shall obtain the No Objection Certificate from the concerned SP, and a verification report prepared by the SP containing particulars of the applicant and every person in whose name the antecedent form is filled up, which shall be submitted by the SP within thirty of receipt of application. The verification report should contain details about any and all possible previous or continuing activities of the applicant which are prejudicial to national security or public order; details on whether applicant operated any agency earlier individually or in a partnership and whether applicant possesses special qualifications or skill considered to be facilitating the operations of the agency.

Rule 5 provides for verification of character and antecedents of the domestic worker. No person shall be employed by the Agency unless after the verification of the character and antecedent by itself, and that of a document certifying the same by the person himself/herself, provided that certificate is valid and agency has no adverse report regarding his/her character and antecedent from any other sources; and finally after receiving the report from SP.[9] Any person seeking employment as domestic worker must fill FORM III[10], and submit the information to the Agency. In case the person has stayed in more than one district during the last five years then separate forms for each one of them shall be submitted. The agency, for verification purposes may make an inquiry by itself or by AO or forward the Form III to concerned SP, as the case may be. Under sub rule 9, the Agency shall deposit a fee of Rs. 250/- payable to SP or AO by way of cash or bank draft, for verification of particulars of person to be employed as domestic worker. In order to establish identity and verify particulars, the concerned authority shall make such inquiries from respectable residents within the locality and District Police Headquarters and of the residence, as considered necessary. Under sub-rule 6, the verification report should be submitted within 30 days of receipt of Form III, and should contain the following information:

  1. The comments of the police on particulars filled by the person in the form;
  2. General report about other activities including means of livelihood during period of verification;
  3. Disclosure about criminal investigation or proceedings, registered or commenced or pending or disposed off at any point of time;
  4. Conviction, if any, in criminal offence punishable with imprisonment;
  5. Whether engagement or employment of the person by the agency would pose a threat to national security.

The character and antecedent verification report shall be marked as confidential and forwarded in a sealed cover, and shall remain valid for three years hence. On the basis of report submitted by the concerned Police Station, SP, AO for the purpose of verification, or for the Agency, a Character Certificate shall be issued to the person under FORM IV[11], which shall not be taken back even after the person ceases to be part of the Agency.

Grant of Licence

Section 5 (3) read with Rule 6 lays down the provision for grant of licence. Upon being satisfied that the Applicant is eligible for grant of licence, based upon suitability and need for granting the same in that area, the Controlling Authority shall upon report of the AO grant the same to the PPA in FORM V.[12] The Authorities should have verified information about the training and skills imparted to the private security guard, domestic workers and supervisors of any Private Placement Agency. The CA shall make all inquiries considered necessary, and after obtaining the NOC from concerned police authority, through a written order grant or refuse a licence, with complete particulars and the fees. If the CA is in disagreement with the NOC issued by concerned police authority, he shall briefly record reasons for the same, place the matter before the Government and proceed to grant or refuse licence as per decision of the Govt. The licence granted under Form V shall remain valid for a period of five years unless the same is cancelled by the CA under Section 6 (1). The decision should be given within 60 days from date of receipt of application. The CA reserves the power to review continuation of the licence of PPA which didn’t adhere to the conditions of ensuring required training. A licence cannot be refused unless fair opportunity is given to the PPA to state its case and be heard accordingly, and without stating the grounds for refusal in the order. Agencies shall refrain from using names like “Indian”, “National” or any other such words which give impression of Government patronage.

Rule 7 lays down conditions for grant of licence. A Licensee[13], within 15 days of receipt of the licence shall intimate the name, name of parent, date of birth, permanent address, correspondence address and the principal profession of each person forming the Agency, to the CA. Any change regarding the address of persons forming the Agency and management should be informed to the CA within 7 days of its occurrence. The licensee is bound to immediately inform the CA about any criminal charge framed against the persons forming the Agency or supervisor engaged or employed by the Agency, in the course of their performance of duties as private security agency. A copy of such communication shall be forwarded to the officer-in-charge of the police station, where the accused person resides. The fees paid for grant of licence shall be non-refundable.

Renewal of licence

Section 5 (4) read with Rule 8 and Rule 9, lay down provisions for renewal of license. Any application for renewal should be made to the CA within a period of 90 days of expiry of the same, which shall renew the same up to a further period of 5 years. The fees for application of renewal shall be the same as that for grant of licence. The renewal of license is subject to the following conditions:

  1. The applicant continues to maintain his principal place of business in the jurisdiction of the CA;
  2. The applicant continues to adhere to the licence conditions and police have no objection to the renewal. Application for renewal is covered under Form I.

Cancellation and Suspension of Licence

Section 6 (1) provides for cancellation of licence by the CA who receives information on the validity of licence or even otherwise that:

  1. Licence has been obtained by misrepresentation or suppression of material facts u/s 4.
  2. Licence holder, without reasonable cause failed to comply with the conditions mentioned in the licence or violated provisions under the Act or Rules made thereunder.

Section 6(2) provides for Rule 10, according to which a licence cannot be suspended or cancelled until the licensee has been given reasonable opportunity to show cause as to why his license should remain operational. In case of a pending inquiry, for contravention of section 8 (1) of the Act or any order made thereunder or conditions of the license granted to the licensee, no opportunity for being heard is required for temporary suspension of license.

The CA after giving reasonable opportunity to the licensee to present his case, and without prejudice to any other penalty for which the licensee is liable under the Act, may by a written order revoke the licence or forfeit the whole or part of the Bank Guarantee [Sec. 5 (1)] and communicate the Order to the holder of license. However, this decision is subject to consideration by the CA where if necessary, and for special reasons, he may pass an order to suspend the license, while the revision of forfeiture of the Bank Guarantee is under way. The licence may be suspended for the duration specified in the Order, which shall be served to the licensee by registered post.

Appeal

Under Section 7 and Rule 11, any person aggrieved by the order of the CA, for refusing grant of license, varying the conditions of license, suspending or revoking a license under section 5 and 6, can prefer an appeal against the said order, in the prescribed form to the Appellate Authority (AA)[14]. According to the Act, appeal must be filed within 30 days of receipt of such order; provided that an appeal at a later date (upon expiry of thirty days) can be entertained if Appellant shows just cause for the delay in filing. Under Rule 11 (2),  no appeal would be entertained, unless it is submitted within a period of 90 days of receiving a copy of the order; provided that if the appellant shows sufficient cause for delay, same can be entertained by the AA upon expiry of 90 days. Ss. (2) allows for reasonable opportunity of being heard, to be given to appellant before the appeal is disposed of by the AA. Under sub rule (3) every appeal shall be preferred in FORM VI[15], signed by the aggrieved person or his advocate to the AA to be delivered in person or via registered post.

Functions and Duties of Placement Agencies

Section 8 read with Rule 12 and Rule 13 elaborate upon the responsibility of the Private Placement Agencies running the employment business for domestic workers in an illustrative list, which is as follows:

  1. PPA shall furnish details of employment of Domestic Worker to the CA within 7 days of the woman being conveyed out of the boundaries of Chhattisgarh.
  2. No fee shall be charged from any domestic worker by whatever name called.
  3. No woman below the age of 18 years shall be employed, engaged or deployed by the PPA.
  4. Every PPA should display a signboard outside its office bearing the name of the agency and its Licence number.
  5. A register must be maintained containing information of domestic workers, who are engaged by it such as names and addresses, in FORM VII[16], which shall be open for inspection by the CA or the AO. It should also contain the names and addresses of persons, where the women workers have been employed.
  6. Sub section 6 provides for other functions and duties as may be prescribed wherein under Rule 13, the agency shall issue an identity card to every domestic worker in FORM VIII[17]. The identity card should contain a full-face colour photo, name of the agency, name of the domestic worker, designation, identification number and the period of validity. The photo identity card shall be maintained up to date, any change and modifications in particulars should be duly updated and where an employee ceases to be engaged or employed by the Agency, the card issued to domestic worker/supervisor must be returned to the agency issuing it, once the employment terminates.

Offences and Punishment

Under Section 9, any person found operating a PPA without a licence in contravention of section 4, is liable for punishment with imprisonment of up to seven years or a fine to the tune of Rs. 1 lakh, or both. Under sub-section (2) b, any person found in violation of his duties contravening section 8, or any Rules made under this Act, or violating conditions of Licence, is liable for punishment with imprisonment which may extend to three years or fine to the tune of Rs. 50, 000/- or with both.

CHAPTER VI covers miscellaneous provisions under sections 10, 11, 12, 13, 14 and 15. The provisions of Cr.P.C. shall apply in all cases of search and seizure under the Act, as is laid down in the law. The Act shall operate in addition to all other applicable laws in the case of domestic workers and not in derogation of any. No suit, prosecution or other legal proceeding shall lie against CA or any other person in respect of anything done or intended to be done in good faith under this Act, or in furtherance of his/her duties.[18]

CHILD RIGHTS
CHILD RIGHTS

Executive Order passed by the Delhi Government

Section 2 comprises of definitions wherein, a domestic worker is anyone above 18 years, in a designated employment relationship, hired to do domestic work through the PPA, exclusive of an person/agent employed through a contractor[19] and one who does the work intermittently or not as a full-time occupation. PPA means a person or body of persons other than a government agency, department or organisation engaged in the business of providing domestic workers at the residence of a person. Commission has been defined as the Delhi Commission for Women[20], and Committee means the Child Welfare Committee[21].

Sections 3 and 4 deal with licence and registration of PPAs wherein the owner/Proprietor/Managing Partner/Managing Director will be issued a registration certificate upon registration with the Labour Department under the Delhi Shops and Establishments Act, 1954 or the Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979, within thirty days of the publication of the said Order. Within 15 days of issuance of Registration certificate, any of the aforementioned stakeholders/applicants shall file for licence from the Deputy Labour Commissioner of the district where its office/place of business/establishment is situated in the prescribed form, fulfilling such conditions as stated in the license.  The license application should be filed with an enclosed copy of the registration certificate issued by the Labour Department, Govt. of NCT of Delhi, under the prescribed laws.

Application for registration and license should provide:

  1. Details of the PPA
  2. Number of persons/domestic workers, who are employed through the agency, their names, age and their addresses;
  3. Details of salaries fixed for each person;
  4. Addresses of the employers;
  5. Nature of work undertaken and period of employment, and;
  6. Details of commissions collected from the employers.

The information provided by the Applicant will be uploaded on the website of Labour Department, and shared with the Child Welfare Committees as well as Delhi Commission for Women for verification seeking further necessary information.

Sections 5 and 6 focus on protecting the interests of the domestic workers by mandating essential steps to be fulfilled by the PPAs. It provides for a written agreement to be signed about the engagement of the domestic worker in employment through the Agency. A pass book should be issued to every domestic worker, affixed with a recent passport size photograph of the worker, duly attested by the Owner/Proprietor/Partner/Director/Manager of the PPA, and should include the following information:

  1. The name, age and address of the domestic worker;
  2. Name of the employer, address of the house/s where the worker is employed;
  3. Proposed period of employment and periodicity;
  4. Proposed rate and periodicity of payment, provided no wage payment shall exceed one month;
  5. Details of bank account number, where the payment will be made.
  6. Name and address of next of kin
  7. Return fare payable to domestic worker on expiry of period of employment, upon condition that if period of actual employment is less that 12 months then no fare shall be payable.

Section 7 lays down the penalty for violation or non-compliance with any provisions of the Order, which is Rs. 50, 000/- to be recovered as arrears of Land revenue upon the PPA /its Owner/Proprietor/Partner/Director. Subsequently their registration and license shall be cancelled by the Labour Department, disabling their business and operation from and in the NCT of Delhi. Any person(s) found in contravention of requirements relating to license, registration, or is found to supply domestic workers without the same, shall be tried and prosecuted under the relevant provisions of Law, as applicable in the case.

The Executive Order has placed the Child Welfare Committees and the Delhi Commission for Women as the working Authority to ensure compliance with all of the above stated blanket provisions. Sections 8, 9 and 10 lay down the Duties, Adjudicating Responsibilities and Powers conferred upon the two bodies, respectively. All records provided by the Labour Department should be perused and verified by them, in pursuance of which they can duly summon the PPA to seek clarification and further information in case inadequacies erupt. They are authorized to utilize services of ‘Childline[22], in appropriate cases. Complaints shall be entertained whether made by the domestic worker him/herself, through his/her guardian, NGO managing Childline services, the employer or the police in appropriate cases. All complaints should be decided within 30 days. The Committee and Commission can summon the PPAs or employers as the offender on the basis of complaint received by them. They can direct payment of wages as prescribed not less than the Minimum Wages notified by Labour Department, GNCT of Delhi from time to time as per agreed terms and impose fines in certain cases. In case severe injuries or hurt is caused to the worker during the course of work, they can direct payment of compensation and medical assistance to the worker. Where it is found that the PPA failed to comply with the agreement with the employer or the terms have been violated, a direction imposing fines, or to return the commission can be passed against the PPAs. They can direct legal aid to a child/woman where a criminal offence has been committed, direct employers to inform the local police or Committee/Commission within 24 hours of the domestic worker going missing and in case the worker is placed in a home against his/her will, they can direct the Agency to return the commission paid by the employer and enable the worker to leave such forced employment. The Commission and Committee are empowered to adjudicate upon complaints as per directions of the Court. It includes withholding of agreed wages not less that Minimum Wages as notified, harassment including that by employer at the hands of PPAs, harassment and abuse by the PPA and/or its staff at their premises or at the work place, non-compliance of the terms of agreement, long working hours, lack of basic facilities including medical care and food, along with, abusive working conditions which is beyond the physical capacity of the child and not conducive to the health of persons between the ages of 14 and 18, in cases when they are employed.

In conclusion the State Act and Rules made thereunder along with the Executive Order are a step in the right direction to ensure a conducive atmosphere for domestic workers where they get their due, and their rights are legally protected. The Order comes at a time to further strengthen the system of check and balances which is under construction. The issuance of identity cards under the Rules and Pass book under the EO, the method and procedure for licensing, duties of the PPAs, along with authority placed in the hands of DCW, CWCs, the DM and other officers in the district will not only curb instances of human trafficking but also utilize this vast human resource. Internationally, the International Labour Organization had laid down Convention 189 on decent work for Domestic Workers which promotes protection of domestic workers and calls for elimination of child labour in domestic work where it is hazardous or detrimental to their well-being. The Executive Order is the first national regulation brought to promote and protect the rights of workers and eliminate instances of child labour in the domestic sector.

[1] Civil Original Jurisdiction, W.P (C) No. 51 of 2006

[2] Writ Petition (Crl.) No. 82/2009

[3] Chhattisgarh Act (No. 23 of 3013)

[4] Section 14

[5] District Magistrate of the concerned District, Rule 2 (1) (e)

[6] Format for “Application for New Licence/Renewal of Licence to Engage in the Business of Private Placement Agency”

[7] Form for Verification of Antecedents

[8] Any officer authorized by the Controlling Authority, Rule 2 (1) (d)

[9] Rule 5 (1)

[10] Form for Verification of Character and Antecedents of Domestic Worker

[11] Character and Antecedent Certificate

[12] License to Engage in Business of Private Placement Agency

[13] Agency to which license has been granted under the Act, Rule 2 (1) (h)

[14]Rule 2 (1) (c): Appellate Authority means the Principal Secretary, Department of Home, Government of Chhattisgarh.

[15] Form for Appeal

[16] Register of Particulars

[17] Photo Identity Card for Private Domestic Worker/Supervisor

[18] Section 13 of the Act

[19] Agent-Contractor Relationship under the Contract Act as separate from an Employer-Employee relation

[20] Constituted under section 3 of the Delhi Commission for Women Act, 1994

[21] Constituted under section 29 of the Juvenile Justice (Care and Protection of Children) Act, 2000

[22] Service set up by Ministry of Women and Child Development, Govt. of India, which is managed by NGOs.

CHATTISGARH PLACEMENT AGENCY ACT ALONGWITH RULES

DELHI PLACEMENT AGENCY EXECUTIVE ORDER 2014

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