NATIONAL LEGAL RESEARCH DESK
1. We have dealt with issues regarding sexual offences committed on women and children in detail. We have also talked about the legal and policy changes needed to address the menace. However, these changes can only handle perceptible and tangible problems. Perceptible problems occur when offences are committed on perceptible people. One of the biggest areas of concern in our country (and around the world) pertains to offences committed silently and under the cloak of darkness on lakhs of poor children and women who are uprooted illegally from their recorded geographic co-ordinates and whisked away into anonymity; into a world of mirth and darkness.
2. This report will be incomplete without dealing with the heinous offence of trafficking of humans, whether it is of children or women for various purposes, understated as immoral but in reality heinous. It now stands undisputed that one of the main reasons for human trafficking is for Commercial Sexual Exploitation (CSE) of these children and women. This view has been reaffirmed by the Supreme Court in the decision of Bachpan Bachao Andolan v. Union of India. Offences committed initially on them never come to light. Over time the sexual abuse becomes part of their life. It then gets termed as prostitution and then the abuse borders on being consensual. It is this vicious circle of missing children/women- The Committee was extremely moved after listening to the above narrations.
7. As far as the trafficking of these children is concerned, the law seems to lag behind social realities. The only law in India dealing with offence of trafficking is the ITPA apart from the IPC, the latter having many provisions which may be employed to deal with different aspects of trafficking. Ironically though, the term ‘trafficking in persons’ is nowhere defined in our law. It has been however defined in the United Nations Palermo Protocol as :
“Trafficking in persons” shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs”
8. The above definition links traditional offences under the Indian Penal Code to the composite offence of ‘trafficking in persons’ and this inexorable link will put an additional burden on the police to lodge an FIR and investigate it in accordance with law. The above definition is also pertinent because the nadir of an offence need not always be in another offence. Phrases like ‘abuse of power or a position of vulnerability’ and ‘giving or receiving benefits to achieve the consent of a person having control of another person’ etc. are per se not offences in the eyes of our law. It is therefore imperative that these actions be linked to the offence of ‘trafficking’ so as to make them culpable. This definition has been adopted in the Goa Children’s Act, 2003111 which can also be used as a template to evolve law in this area.
9. In any event, we recommend that the definition of ‘trafficking’ contained in the Palermo Protocol ought to be adopted by the Legislature as a definition of the offence in the Indian context, since the lack of definition of trafficking and the ineffective law enforcement in relation to trafficking and in particular the non-application of the provisions contained in the Indian Penal Code in relation to the same have actually made trafficking a huge industry which has not been brought to any critical gaze of law enforcement for reasons already cited. We believe that in order to protect the dignity of women in particular, it is necessary that the definition of trafficking as contained above must be incorporated as an independent definition in the Penal Code as a separate offence.
10. The ITPA was enacted to bring into effect the “UN Convention For The Suppression Of The Traffic In Persons And Of The Exploitation Of The Prostitution Of Others, 1950”. Moreover, it was aimed to give effect to the lofty Constitutional mandate in Article 23. However, when we look at the provisions of the said Act, it appears to be an Act for the prevention of immoral traffic rather than dealing with traffic itself. As noted above, the expression ‘trafficking’ is not defined in the ITPA. We may add that there can be cases of children who are trafficked, who are sexually assaulted, but yet are not actually into prostitution. We further notice that in cases of trafficking, at least the offences which are cognate offences like Sections 366, 367, 370, 372 and 373 of the IPC are vital provisions which are not relied upon when a case of trafficking is brought to the attention of the police. Article 23 of the Constitution, which provides for prohibition of traffic in human beings and forced labour, clearly mandates that traffic in human beings, beggary and other similar forms of forced labour, are prohibited and any contravention of this provision shall be an offence punishable in accordance with law.
11. The ITPA defines a ‘trafficking police officer’ in Section 2(j)and prescribes a punishment (under Section 3) for keeping a brothel or allowing premises to be used as a brothel and to further punish for living on the earnings of prostitution. Section 5 provides that – (a) any person who procures or attempts to procure a person whether with or without his consent for the purpose of prostitution or induces a person to go from any place with the intent that he may for the purpose of prostitution become the inmate of a frequent brothel or takes or attempts to take a person or causes a person to be taken from one place to another with a view to his carrying on or being brought up to carry on prostitution or cause or induces a person to carry on prostitution shall be punishable on conviction with rigorous imprisonment for a term not less than 3 years and not more than 7 years and also with fine which may extend to Rs.2000. Strangely, the said provision contains the following words:-
“If any offence under this sub-section is committed against the will of any person, the punishment offered for a term of 7 years shall extend imprisonment for a term of 14 years….”
12. It is further provided that if the person, in respect of whom an offence committed under the subsection, is a child, the punishment provided under this sub-section shall extend to a rigorous imprisonment for a term not less than 7 years but may extend to life.
13. To deliberate further, we should not lose track of the social realities which lead to women and children being pushed into these criminal rings. We should also not forget that controlling such crimes have great consequences on the survivors. As observed by the Supreme Court in the Bachpan Bachao Andolan112 decision:
“34. Trafficking in women and children has become an increasingly lucrative business especially since the risk of being prosecuted is very low. Women and children do not usually come to the brothels on their own will, but are brought through highly systematic, organised and illegal trafficking networks run by experienced individuals who buy, transport and sell children into prostitution. Traffickers tend to work in groups and children being trafficked often change hands to ensure that neither the trafficker nor the child gets caught during transit. Different groups of traffickers include gang members, police, pimps and even politicians, all working as a nexus. Trafficking networks are well organised and have linkages both within the country and in the neighbouring countries. Most traffickers are men. The role of women in this business is restricted to recruitment at the brothels.”
14. Trafficking is a complex crime with innumerable constituents. It is time we looked at a comprehensive code to deal with CSE as opposed to prostitution, which is traditionally viewed in the our society as ‘immoral’. We have been introduced to an elaborate study on ‘Trafficking of Women and Children in India’ made by the Institute of Social Sciences under the auspices of NHRC and UNIFEM. This study has underlined that victims of CSE are victims of rape. The said study has highlighted most of the areas of concern while dealing with the crime of trafficking.
15. What comes to the fore from these studies and the various recommendations we have received, apart from the oral interactions had by us, is that our law has many effective provisions to deal with trafficking. They are scattered in different statutes like the ITPA, Juvenile Justice Act and the IPC. However, due to lack of synergies, these provisions remain underused and in many cases abused. Section 5 of the ITPA makes ‘procuring, inducing or taking a person for the sake of prostitution’ as a punishable offence. However the records show that this is one of the most underused provisions of the Act with an abysmal rate of prosecution and conviction. On the other hand, one of the prime examples for the abuse of law is Section 8 of the same Act. The women and children who are subjected to the offences under the Act are firstly ‘arrested’ as ‘prostitutes’. We are amazed at how young children and women who are supposed to be protected by the Act are ‘arrested’ under the very same law. The result is that women and children are arrested for the Act of ‘soliciting’ prostitution and prosecuted. This is a typical case of the survivor of an offence (we prefer the term to ‘victim’) ultimately becomes the convict. We recommend that the law needs to be sensitized and overhauled lest it degrades into a tool to stigmatize girls and women for the rest of their lives.
16. It has also been brought to our notice that the lack of an established protocol for verifying the age of the survivors leads to the exploitation of loopholes in the ITPA and Juvenile Justice Act. The survivors, if they are below the age of 18 are sent to Child Welfare Committee (CWC) as prescribed in the Juvenile Justice Act. This could lead to theybeing taken away from the clutches of the criminals. However since most of the trafficked persons do not have adequate records to prove their age, they are shown as adults using falsified documents presented mostly by pimps and middlemen. It is shown from studies that in most cases, the survivors are ‘bailed out’ by pimps and middlemen.
17. A standardized protocol has to be put in place whereby the age of survivors is objectively assessed by a body of experts using well recognized tests like the ossification test. We note with concern that there appears to be a deep rooted nexus between some in the police force and criminals, which has primarily led to the misuse and abuse of the law. The offence of trafficking is much more intricate and complex than traditional offences. The country needs a specialized police force to deal with trafficking since it has inter alia trans-border connections as well. It is a sophisticated crime which needs a specialised law enforcement agency to tackle.
18. We also perceive that a ‘prevention or conviction’ approach will not solve the problem. One of us, while assisting the court as the Solicitor General of India in Bachpan Bachao Andolan had the opportunity to present a detailed report to the court on issues of child trafficking in India. The Supreme Court reaffirmed the submission of the Solicitor General that “rehabilitation will be the measure of success of the Juvenile Justice Act”114. The shelter homes/corrective institutions and CWCs should perform the role of rehabilitating the survivors. They should not become breeding grounds for future offences. It is of paramount importance that the shelter homes and corrective institutions are constantly monitored by an independent body and reports are periodically assessed by the State governments.
19. The recommendations given by the Solicitor General have now become diktats of the court. We are reproducing the suggestions given with respect to the synergy of the ITPA and Juvenile Justice Act as part of our opinion in this regard:
“38. The following directions are necessary:
(a) Every Magistrate before whom a child is brought must be conscious of the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000;
(b) He must find out whether the child is below
the age of 18 years;
(c) If it is so, he cannot be accused of an offence under Section 7 or 8 of ITPA;
(d) The child will then have to be protected under Juvenile Justice Authority;
(e) The Magistrate has a responsibility to ascertain and confirm that the person produced before her or him is a child by accurate medical examination;
(f) The definition of a child in Section 2(k) means a juvenile or a child as a person who has not completed 18 years of age;
(g) Once the age test is passed under Section 17(2) establishes that the child is a child/minor less than 18 years of age, the Magistrate/Sessions Judge while framing charges must also take into account whether any offence has been committed under Sections 342, 366, 366-A, 366-B, 367, 368, 370, 371, 372, 373, 375 and if so, he or she must also frame charges additionally;
(h) The child should be considered as a child in the protection of the Child Welfare Act;
(i) The child should be handed over to the Child Welfare Committee to take care of the child. The performance of the Child Welfare Committees must be reviewed by the High Court with a committee of not less than three Hon’ble Judges and two psychiatrists;
(j) A child must not be charged with any offence under ITPA or IPC;
(k) A minor trafficked victim must be classified as a child in need of care and protection. Further, the Magistrate must also order for intermediate custody of minor under Section 17(3) of ITPA, 1956;
(l) There should not be any joint proceedings of a juvenile and a person who is not a juvenile on account of Section 18 of the Juvenile Justice (Care and Protection of Children) Act, 2000;
(m) It is necessary that courts must be directed that the same lawyer must not represent the trafficker as well as the trafficked minor;
(n) Evidence of child should be taken in camera.
Courts must protect the dignity of children. The children’s best interest should be the priority.
20. Even though under Section 22A of the ITPA, the State Governments have the power to set up Special Courts to deal with the offence of trafficking, the said provision has not been utilized optimally by the States. As we had mentioned the need for specialized investigating and prosecuting agencies, specialised courts are also required to effectively deal with this complex crime.
21. We have had the opportunity of meeting many children who have been subjected to the most inhuman crime of trafficking. Many of them have no recollection of their roots and have been subjected to various other crimes on the way. We reiterate the need for a comprehensive code to deal with ‘Trafficking and Sexual Exploitation (both commercial and otherwise)’. This code ought to be complemented with specialised judicial mechanism to prosecute offender while protecting the survivors.
22. At this juncture, we may note the desensitization of the police that has taken place in such a fundamental matter. We note that the police force is unable to seriously view the offences of trafficking and sexual abuse of trafficked women and children is on account of three factors:-
a) The members of the police force themselves often come from a society where patriarchal superiority is established;
b) Police is considered to be an expression of power and authority as distinguished from service and protection of the oppressed; and
c) They are as much alive either in the form of connivance or in the trafficking of children including female children.
23. The police are also aware that such female children are either used as domestic labour, open to sexual assault and sometimes sexually assault such children. If trafficking in women is taking place with the complete knowledge of the police, and a few rescue operations take place at the instance of either an NGO or the police but which rescue operations do not actually cover the entire field of trafficked children, it is clear to us that there is a fundamental incompetence in the ability of the police to deal with rape cases.
24. At our request, the Commissioner, Delhi Police submitted certain alarming facts in respect of missing children, by way of an affidavit. We were also briefed by a Special Commissioner of Police, Delhi, who met with us during the course of our oral consultations, that FIRs, in cases of missing children above 8 years of age, would be registered only after 24 hours after the children went missing.It is interesting to note that the analysis of reasons for missing children has been prepared on the information provided by the Delhi Legal Services Authority. It is also interesting to note that there were 3395 cases of missing children in 2011 and 3519 cases in 2012.
25. We have been informed by the Delhi Police that:-
“viii. Investigation of cases of kidnapping related to missing children was being hampered on account of absence of photographs of the children, particularly those belonging to poor strata of society. To tackle the problem, a scheme PEHCHAAN was launched in July 2012 in which a photograph is taken of the entire family with all children and a copy of the photograph is given to the family for record so that in case a child is reported missing, his/her photograph is available. This scheme has been implemented in areas where maximum children are reported missing. 64,055 children have been photographed under this scheme in various parts of Delhi and beyond with initial focus on JJ clusters and rehabilitation colonies and a Police station wise data base has been maintained.”
26. We are uncomfortable with such photographs being taken and are unsure whether this can lead to sexual profiling. We have been further led to understand that, in a meeting held on June 21,2012 (prior to the present Commissioner being in place), the Lt. Governor of Delhi asked for a gender breakup of missing children. It is clear,therefore, that the State is fully aware of the problem of missing children and its implications. We notice from the minutes of subsequent meeting held on August 23, 2012 presided by Lt. Governor, that:-
“Gender distribution of missing children be indicated during the next meeting. Causative factors behind missing children be also depicted by pie chart…..”
27. We have also seen correspondence between the Delhi Police and the Director, Department of Women and Child Development, Government of NCT of Delhi, wherein the Delhi Police has sought the following information:
“How many cases of rape and other crimes against women have been reported in the NCT wherein one or more of the accused person(s) are staff of protective homes for women, or where the offence has taken place within the premises of a protective home for women for the period 01.01.2007 to 31.12.2012. Data in respect of each such crime be provided separately.”
28. We find that no reply has been made available by the Delhi Government.
29. During the course of our oral consultations, women’s organizations from Banda and Saharanpur in UP confirmed to us that the sale of women and children is rampant in the outlying areas of Saharanpur and in some areas of Bareilly. The Committee is unable to dismiss such reports as it has received lateral information of sale of women and children in a bazar near Saharanpur.Under these circumstances, it is clear that successive state governments of Uttar Pradesh have obviously turned a blind eye to the issue of trafficking.
30. Our view has been corroborated by the CBI officer who appeared before us during the oral hearing.He submitted that trafficking has been a persistent problem since 1999. He also admitted that many procedural hitches including delayed registration of complaints has hampered the attempts to curb the menace. This is an important aberration which must be addressed by Parliament.
31. We must also note, with some alarm, the submission made before us by the Director General, Health Services (MoHFW), when asked by the Committee whether organs of accident victims were being illegally removed at the hospital taken by the police. He stated that this was indeed the case and hinted at the connivance of the police.
32. The Director, CBI, has also submitted that the CBI is aware of such kind of cases. We find, however,that no serious attempt has been made on the part of the CBI from 2007 till 2012 to investigate these cases. We do note that on 27th February 2012, a case of cheating and kidnapping of minor girls, who were wrongfully confined and sexually exploited under false promise of employment, was registered which is pending trial. We are somewhat surprised however that the CBI has not given us details of any of the legal provisions under which this case has been registered.
33. We notice that when cases are directed to be registered under the orders of the High Court, the performance of the CBI appears to be slightly better. We also understand that the CBI is aware about the running of placement agencies as a trafficking racket. The CBI says that it has designated one of its units as an Anti-Human Trafficking Unit, but this unit has commenced functioning only with effect from 28th February 2012.
34. Paragraphs 3.5 and 3.6 of the CBI (Crime) Manual 2005 were brought to our notice, which deal with trafficking of human beings:-
“3.5 The Special Crimes Zones-I & II are organized into Branches/ Units having territorial jurisdiction over one or more States as well as Central Investigating Units having all-India jurisdiction. These Branches/Units take up collection of information and investigation of the following types of cases: –
(f) Global trafficking in human beings especially women and children for various activities including prostitution, child sex etc.
(h) Trade in human organs.3.6 The Special Crimes Division may also undertake the task of collection, collation and dissemination of information/intelligence in respect of organized gangs of criminals, terrorists, kidnapers/abductors,trafficking of human beings, especially women andchildren.”
35. We are also informed by the Director, CBI, that the AHTU is being strengthened. We must say that the CBI has candidly admitted that no organised gang has been apprehended by the CBI during the above said period.
36. On the issue of illegal extraction of organs, we find that only three cases have been registered by the CBI – one is a case in the year 2007 against one Mahender Singh Goldi. The allegation was that the kidneys of boys and girls were being extracted and they were being sold by deceiving them.
37. A charge sheet was filed against 9 persons and the case is still pending at the stage of prosecution evidence. In respect of a third complaint, a closure report was filed. These three are enough for us to arouse a suspicion that there exists a huge racket of extraction and sale of human organs and in view of the statement made by the Director General of Health Services and in the context of trafficking of children whose numbers are not available, we draw an adverse inference against all the State police departments, who have failed to respond to the data sheet which this Committee had requested. We come to the conclusion that there appears to be organised networks and gangs which are operating which through middlemen are inducing and abducting children including female children and with the connivance of police is actually selling them, abducting them,subjecting them to sexual assault and possibly extraction of organs. Therefore the advisory issued by the Ministry of Home Affairs dated 31st January 2012 assumes special significance.
38. When one looks at the ‘efforts’ undertaken by the executive, we have examined the Delhi Police’s ‘Zipnet’ website which was set up in 2004 to act as a country-wide database for, inter alia, missing women and children. When Zipnet was established, its objective was to have a nation-wide network / database by 2012 – i.e., all police stations in the country would be connected. This has, sadly, not been achieved.
39. As we have noticed, there appears to be great difficulty in getting the correct numbers of untraced women and children. We must therefore look at the figures with a certain degree of suspicion because there has been a lack of proper effort by the State and the law enforcement machinery either to register cases or for that matter of fact have an exact number of missing women and children. There is no correlation between the number of children who are missing and the number children who are traced and supposedly rehabilitated.
40. The failure of statutory authorities in seeking protect children is quite evident. The abject failure of the State to maintain proper protective homes for distressed women and children – homes and shelters where women and children are treated with love and affection and where a conducive climate of counselling and motivation for a better future is made available. If this failure is not remedied immediately, then such children and women might also not only slip back to crime, but they would feel that society has cheated them.
41. Trafficking is an organised crime but yet we are not satisfied that traffickers are brought to book.Notwithstanding the very well-meaning publications of UNODC as well as the provisions of the ITPA, we do not find that State Governments have taken any synergistic steps.We also find that in spite of excellent resource materials, this has not weighed on the priority of the police. We are also of the view that even though the NHRC and the MHA have issued circulars and advisories (especially after the mass killings of children in Nithari village), the provisions of registering complaints is not being strictly followed. It is clear to us that even though Anti-Human Trafficking Units have been set up in the country we are surprised that such units have not cracked any gangs and particularly gangs,which operate at a national and international level.We also must point out that human trafficking is no less a serious crime than drug trafficking.
42. One of the representations submitted to this Committee claims that more than one lakh children in the country go missing each year. We are unable to comment upon the correctness of this figure but we are also not able to dismiss it. We are afraid that even though there are salutary provisions in the Juvenile Justice (Care and Protection) Act, 2000, they have not been implemented in the spirit for mainstreaming the child into the society.
43. In other words, children have not been strengthened and made confident to lead a normal life in conjunction with their parents and society. As per NCRB’s records, in the year 2009, 68,227 children were missing, 77,133 were missing in 2010 and 59,668 were missing in 2011. We also notice that these figures exclude 5 States which are the most vulnerable States of trafficking. The data seen by us does not indicate whether those children who have been traced are the ones which are missing.
44. We must, at this stage, note that by way of a series of letters, we had requested, inter alia, details of missing children from the police departments of all states and Union Territories. While only the Delhi Police acknowledged our request, we are not satisfied with the figures furnished by it in respect of missing children.
45. In view of the advisory issued by the of the Ministry of Home Affairs dated 31st January 2012 115, there can be no doubt that Government of India is completely cognizant of the seriousness of the problem but has been unable to crack it.115
46. It is pertinent to examine the text of the said advisory:
“The issue of missing and untraced children, based on police records, is a matter of deep concern to the Government of India. It requires a concerted and systematic attention of Central and State Governments. As missing children are exposed to high risk situations,they are vulnerable and fall prey to crimes of exploitation, abuse, including human trafficking. It is, therefore, necessary that effective steps be taken for investigation of cases relating to missing children and tracing of these children. This advisory is in continuation of the advisories dated 09.09.2009, 14.7.2010 02.12.2011 and 4.1.2012 issued by this Ministry to all the States / UTs on similar/related
issues of crimes against children.
… … …
An officer not below the rank of a DIG should be declared Nodal Officer for every state/UT for handling the cases of missing children.upervision of investigation of such cases by senior police officers of the level of Dy.SP/Addl.SP may be ensured.When, any heinous crime or organized crime on missing children, such as, victims of rape, sexual abuse,child pornography, organ trade etc, is reported, and then the investigation of such cases should be taken over by the CID of the States/UTs to expedite the investigation and to ensure prosecution of the offenders. State Crime branch should maintain close links with District Missing Children Unit (DMCU) and ensure that uploading of data and matching of missing children with UIDBs/Children found is carried out effectively.The Missing Persons Squad (MPS) will match the information regarding missing children with the data available with the MPS and if matched it should be communicated to the concerned police station. A monthly report should be sent to DMCU.When the missing person is traced through search or rescue from places of exploitation, the police control room, District Missing Persons Unit (DMPU) and Missing Persons Squad (MPS) should be informed immediately for updating the record and for discontinuing the search.Whether these missing children land up in Begging Rings, Flesh Trade, Pedophilic Net and Organ Trade or end up getting exported for Camel Jockeying Etc., it is always an Organised Crime. Profile of all traffickers who facilitate such trafficking should be maintained at PS level in Gang Registers.The State CID should use data mining to analyse patterns, gather intelligence and to build profiles which have inter state ramifications, ascertain angles of trafficking, organized crime, number age/sex profile and maintain liaison with other central agencies dealing with the matter.All police officers and men, especially the team of officers handling investigation into these cases need to be trained and sensitized on an ongoing basis to the issues concerned. The issues of missing children,human trafficking along with JJ Act may be made part of syllabus in the state police training colleges to sensitize the police force. The training should focus on imparting knowledge of the substantial and procedural laws, court rulings, administrative procedures, skills in child-friendly investigations, including interviewing, interrogation, scientific data collection, presentation in the court of law, networking with the prosecutors, facilitating victims/witness protection programmes etc. As there is considerable overlap in the problems of missing children and trafficked children, AHTUs should play an active role. The Superintendent of Police in the districts and Commissioners of Police in the metropolitan areas should review each case of missing children/persons during their monthly crime review meetings to find out the actual number of missing children, number of children traced/untraced, children, the reasons for child disappearance/missing and its links to human trafficking and to take stringent action against the perpetrators of the crime. They should also take strong measures for successful prosecution of the offenders in the court of law. In cases where children and women have been smuggled illegally out of the country, the investigation agencies should utilize Interpol channels to communicate with member countries and if need be, have appropriate Interpol Notices issued through CBI/Interpol wing, in order to trace the victims.An exercise to check all the unclaimed and unidentified children who are kept under safe custody in various shelter homes of the government/non-governmental agencies may be undertaken and details may be matched with the available missing children data base in the country as most of the children lodged in these shelter homes are indeed missing children. Missing Persons Bureau in the state should have a centralized data on children lodged in these shelter homes run by the government/non-governmental agencies in the state with mechanism to update the data on regular basis. This data along with the photographs of the children should be digitized and regularly sent to NCRB and NCRB will upload this data in their website www.ncrb.gov.in for pan-India search by other state police/stake holders.A number of children reportedly die after disappearance/missing and their dead bodies remain unidentified. States/UTs should also consider making it mandatory for the investigating officers and provide the necessary infrastructure to have the DNA profiling of all such unidentified dead bodies for future comparison and identification. DNA profile of the nearest blood relative through informed consent should be done if child is not found for 3 months.Both the DNA data base may be maintained at the state MPS for future comparison and matching.Similarly, in order to curtail offences of child sex abuse,in all cases of pornography, cyber crimes etc. Under investigation, efforts should be made to correlate the pictures of the child with the details of missing children and vice-versa.The data available in each missing children file should be uploaded to the computer maintained at the police station for this purpose. It will be the responsibility of each I.O. to ensure that efforts made towards tracing the missing children is also uploaded on the computer which would be linked to national database and via CCTNS, eventually. CCTNS should update it promptly on the proposed ‘Khoya Bachpan’ website.The SHO/Inspector of the police station will ensure that the computerized record of missing children is maintained up-to-date and the same is sent to DCRB and from there to SCRB. The State and District/City police Control Room/local Police net, ZIP NET,www.trackthemissingchild.gov.in should be updated immediately. It would be useful to access data on missing children through other websites maintained by www.childlineindia.org.in and www.stoptrafficking.into mention a few.NCRB is mandated to function as a national repository of crime and criminal related data in the country and the States /UTs should evolve a mechanism to share the data on missing children and human trafficking cases to NCRB in the prescribed proforma of NCRB on monthly basis for analysis and study to find the emerging trends in these sensitive issues.NCRB should device methods of uploading the data on a real-time basis not only of missing persons but also with respect to traced and un-traced persons as well as linking the database with those of rescued persons from different places including children rescued from exploitative or forced labour.The universal number 1098 for reporting of missing children 24×7 is being run in some States / UTs, but there is no uniformity. It needs to be made effective and operational if not done earlier. There should be at least one dedicated police personnel at this helpline on 24×7 basis with proper monitoring mechanism. In the meantime BPR&D would explore further possibilities of integrating 1098 with 100 to make it toll free. Responsible and competent NGOs be earmarked as Nodal NGOs in States for assisting the law enforcement agencies in this regard. The NGOs who have done work in this field with commitment be supported by the law enforcement agencies and synergy be established so that they could work in tandem. When training the police, they must be oriented to undertake all preventive steps including steps to identify children in distress, watch of suspicious persons, special attention at transit points viz. Border areas, ICPs, railway stations, bus stations, airports, ports etc., identify vulnerable population/places and take steps to address the vulnerability on time.BSF/ITBP/SSB personnel in outposts on borders should be trained to look-out for trafficked children on the borders. They should be sensitized to question and detect unaccompanied minors/children or accompanying adults with suspicious behaviour during pursuant checking of vehicles/public transport.The law enforcement agencies may involve representatives of Panchayati Raj Institutions and the community at large, such as, Village Watch & ward/Municipal Committees/Neighbourhood Committees/Resident Welfare Associations etc.. This will enable the community to get fully involved along with the administration/police in identification, tracing & recovery of missing and trafficked children and arrest of accused persons.Community awareness programmes on the issue of missing children and its links with human trafficking may be undertaken by the District administration.Periodic interface with Public and Safety Awareness Campaign should be conducted in schools and vulnerable areas, jointly by the district administration.Schools must be encouraged to issue Identity cards to children.The activities of various departments and agencies in the States /UTs need to be integrated through a nodal agency. These includes Home Department, Police Department, Social Welfare Department, Women and Child Welfare Department, Juvenile Justice Department, Child Welfare Committees, Labour Department, Health Department, Tourism Department as well as other agencies like State Human Rights Commission, State Women’s Commission, State Commission for Child Rights, Railways, RPF, BSF, SSB, ITBP etc. State governments may institutionalize a coordinating mechanism among all these agencies through an SOP clearly mandating the roles and responsibilities of each of these agencies.In places, where vulnerable groups of children are found in large numbers, a mechanism should be evolved in partnership with NGOs and social workers, where by apart from rendering counseling to them, awareness-raising activities are also carried out. The protocols and SOPs developed by UNODC in the Joint Project of MHA-UNODC, during 2006-2008,including protocol on interstate transfer of rescued victims may be effectively utilized (refer www.unodc.org/india).”
47. A Standard Operating Procedure for dealing with cases of missing and found children appears to have been issued by the Commissioner of Police on 19th May 2011. In fact, the Standard Operating Procedure is rather long and one can easily see that the purpose of such a detailed procedure is only to make sure that no officer will be able to understand the steps nor will he be able to effectively ensure compliance with the same.
48. In fact, we also take note of the fact that on September 16, 2009, the Delhi High Court on its own Motion116 has taken suo motu cognizance pertaining to missing children. One of the first directions is that Delhi Police will, without any delay, register all complaints of missing children as FIRs and that the Delhi Police will strictly follow the Supreme Court’s directions in Horilal. We also understand that the Supreme Court, on January 17, 2013, has directed police stations across the country to compulsorily register missing complaints of any minor and appoint a special police officer to handle complaints of juveniles. Such police personnel should be stationed at every police station in plain clothes.
49. We may now add that in Bachpan Bachao Andolan etc. v. Union of India etc. the issue arose in the context of trafficking of missing children for the purpose of forced labour and placing them with placement agencies. The Delhi High Court’s following observations in this context are relevant:
“17. Trafficking in women and children is the gravest form of abuse and exploitation of human beings. Thousands of Indians are trafficked everyday to some destination or the other and are forced to lead lives of slavery. They are forced to survive in brothels, factories, guesthouses, dance bars, farms and even in the homes of well-off Indians, with no control over their bodies and lives.The Indian Constitution specifically bans the trafficking of persons. Article 23 & others in the Fundamental Rights, Part III of the Constitution, prohibits “traffic in human beings and other similar forms of forced labour”. Though there is no concrete definition of trafficking, it could be said that trafficking necessarily involves movement/transportation, of a person by means of coercion or deceit, and consequent exploitation leading to commercialization. The abusers, including the traffickers, the recruiters, the transporters, the sellers, the buyers, the end-users etc., exploit the vulnerability of the trafficked person.Trafficking shows phenomenal increase with globalization. Increasing profit with little or no risk,organized activities, low priority in law enforcement etc., aggravate the situation. The income generated by trafficking is comparable to the money generated through trafficking in arms and drugs. Trafficking in human beings take place for the purpose of exploitation which in general could be categorized as (a) Sex based and (b) Non-sex-based. The former category includes trafficking for prostitution,Commercial sexual abuse, paedophilia, pornography,cyber-sex, and different types of disguised sexual exploitation that take place in some of the massage parlours, beauty parlours, bars, and other manifestations like call girl racket, friendship clubs,etc. Non sex based trafficking could be for different types of servitude, like domestic labour, industrial labour, adoption, organ transplant, camel racing,marriage related rackets etc. But the growing trafficking in women is principally for the purpose of prostitution. Prostitution is an international problem. However, we are aware of the fact that it is legalized in many countries around the globe.Unfortunately, society remains tolerant of this abominable crime against women. There are assorted ways of getting women into prostitution that are common to many countries; then there are particular unique methods varies to a country.Probably, the three most common methods are false employment promises, false marriages and kidnapping. But what makes women and girls vulnerable are economic distress, desertion by their spouses, sexually exploitative social customs and family traditions. In a recent survey in India, prostituted women cited the following reasons for their remaining in the trade, reasons that have been echoed in all the concerned countries. In descending order of significance, they are: poverty and unemployment; lack of proper reintegration services,lack of options; stigma and adverse social attitudes family expectations and pressure; resignation and acclimatization to the lifestyle. The two principal Indian laws that addresses the trafficking and prostitution in particular are the Suppression of Immoral Traffic in Women and Girls Act, 1956(SITA) and the Immoral Traffic (Prevention) Act,1986 (ITPA), colloquially called PITA, and amendment to SITA. Neither law prohibits prostitution per se, but both forbids commercialized vice and soliciting.”
50. It was further observed as follows:-
“The main concern of all the counsel in these writ petitions was that there was no comprehensive legislation regulating the placement agencies to take care of the menace. On the other hand, there were multiple statutes and authorities under those statutes and the challenge was as to how to achieve the coordination to remove/disconnect them. It would be of use to mention that this has been the focus of the various proceedings in these writ petitions and directions were given from time to time. Though, it is not necessary to take note of all those orders, some of the important orders and directions passed in all these proceedings from time to time need a look, as that would pave the way for final direction, which we propose to issue in this order. In the order dated 04.10.2004, this Court had highlighted two issues,which arise in these writ petitions, viz., tracing and production of children on the one hand and functioning of different placement agencies working in NCT of Delhi on the other hand. However, directions were given to the Government of NCT, Delhi by that order, to provide framework within which the placement agencies could be regulated and monitored.”
51. The manner in which the Juvenile Justice Act has been implemented shows a complete failure of the State. It shows apathy but perhaps more importantly it shows vested interests. This is a matter of serious concern. We are informed that the Principal Magistrate, Juvenile Justice Board, has actually passed orders to segregate juveniles on the basis of age to ensure that younger juveniles were tender and impressionable minds are not mistreated and are kept away from elder juveniles.We are also given to understand that it has been observed that:-
“No constructive occupational training or schedule has been formulated or are being followed, rather the fact that they are able to move out of the protective custody of the observation home, at will, shows juveniles are prone to outside influence and are easy targets for those who may want to manipulate them. It is submitted that a constructive and productive role which the institution is required to play is possible only if the provisions of the JJ Act 2000 and Rules framed thereunder are followed by the Department of Social Welfare in creating requisite infrastructure and institutions in accordance with Acts and Rules for the administration of juvenile justice.”
52. We have also examined orders passed by the Juvenile Justice Boards in various matters. One of these orders is extracted below, which clearly sets out the hostile atmosphere which seems to be commonplace in juvenile homes in the country:
“Facts The child was produced before the Board on 23.8.2010 along with Ms. Nandini of SAFMA and Mr. Anant K. Asthana, advocate from DLSA. The child made a complaint in the Board that he was given beatings by the elder children inside the home. He said that he has not reported this to Superintendent of the Home, accordingly it was deemed fit to apprise the Superintendent of the situation and to ask him to file a report. What happened thereafter was in fact beyond the comprehension of the Board. Child appeared before the Board on 25.8.2010 and report of Superintendent was also received. The report of superintendent is reiterated, as its contents are important in explaining the conduct/language used by the juvenile in the Board and Chamber.
“With due respect, I would like to inform your goodself that juvenile Deepak is living in child friendly environment and enjoying his life at Prayas Observation Home, Delhi Gate. He has gained 10 kg weight in a month. As per the Juvenile he told lie to release. No elder children tease him and beat him. We are providing due care, guidance and supervision for his complete development. In future I will take care of this child.”
… … …
There was something wrong. The body language of the boy was betraying the utterance and he seemed terrified. He was called in the chamber. He was asked to tell the truth. The child put all his power to control his emotions and pain and kept on repeating that nothing in fact had happened, no one had beaten him. He was 30 kg of weight when he came to the Home and weighs 40 kg now.There was still something that the child was trying to hide and terror and tension were apparent in his eyes.We talked and talked and the child, as he is – broken down.He said that initially he was beaten by a child who is in custody in a case of murder, Bhaiya, however, blamed him as he had bit the boy (who had beaten him) in hand to save himself from being suffocated. He got serious injuries in his ribs.Thereafter he explained the incident that took place after he had made the complaint in the Board (regarding the beatings given by the other/elder children). He says that when he went from the Board to the home, the paper (order of the Board) was given to Kale Wale Bhaiya. He went to the room and started playing carom. Bhaiya came there; he showed the paper to everybody and read it over loudly. Then Bhaiya beat him. Bhaiya put his head between the legs and hit on his head by elbow. The boy was told that if he would say anything against him (bhaiya) the other boys (co-inmates) will not spare him. Thereafter all the children kept on beating him even after Bhaiya left. Child was made to rub his nose in front of Bhaiya and was made to seek apology.He was apologised but on the condition that he would say before the Board as was told to him and the poor boy did the same.There is an observation in the board proceedings dated 25.08.2010 that the child had a swollen hand (right), he could not move his third finger. He says he had bandage over the hands, which were removed in the morning. He has marks of beatings on his back.
… … …
The entire law of Juvenile justice is aimed at providing
“CARE AND PROTECTION” to the children whether it be a child in conflict with law or a neglected child in need of care and protection, and the law definitely is not talking about the kind of care and protection which has been given to this particular child in the instant matter.The fundamental rights of the juvenile have been violated and brutally so.
It is worth consideration that whatever be the administrative set up for keeping a child in protective custody / understanding / memorandum between the government and the non governmental authorities (Prayas in the instant matter), each child is kept under the protective custody by the order of the board. He is in de-jure custody of the board and the ultimate responsibility of his care and protection is of none other than board, logically also because he has been kept there because the Board wanted him to be kept there. The board feels ashamed in having failed to ensure the safety and the protection of the child. The manner in which the child has been dealt with cannot be tolerated for an adult person; he is a small boy who has seen enough sufferings in his small life.The child lost his mother at an early age, his father is a drunkard and does not bother where and how his child is surviving. His elder brother is missing for more than a year and there are allegations of he having been murdered – the investigation is going on. As if this all was not sufficient, the child has been given this ghastly treatment by none other than the person,who was supposed to be his protector under the law. There is no reason with us to believe that the child would have given a false statement. The injuries on his body were apparent and an observation to the effect has come in the proceedings dated 23-08-2010. There is no reason why the Board should tolerate this brutal act either.We feel guilty of betraying the faith of the child, which he showed in us when we told him that he is not safe outside and so we are taking him in custody – our custody – protective custody.It is pertinent to note that a child is kept in an observation home, or for that reason in any institution, not as a mark of punishment but for his own protection and only if it is in his interest. Keeping a child in protective custody and giving him this kind of treatment is a crime and the law proclaims so under Section 23 of the JUVENILE JUSTICE (Care and Protection of Children) ACT,2000 (herein after referred to as the JJ ACT).”
53. We are of the opinion that there has been a failure to create the requisite infrastructure which would help children to be reintegrated into society. The priority for making these high quality institutions so that de facto inequality can be cured, has been completely overlooked by all concerned.
54. We also notice that in a Vision Document on Child Rights 2012-2013 has been under the aegis of the Assam State Legal Services Authority.
55. It is atrocious that juveniles were being lodged en masse in jails. The Delhi High Court in Court on its own Motion v. Department of Women and Child Development120, by an order dated 11th May 2012 held that the same violated Article 21 of the Constitution. It is strange that without sending them to the juvenile home, they were taken to Tihar Jail. It is clear that a number of directions are being passed by the Courts but we are unable to see any perceptible change.
56. In a case involving sanction for prosecution against physical and sexual abuse in custody (State v. Rameez), Muralidhar, J. observed as follows:-
“7. This Court has failed to understand how the State could be a prejudiced in any manner by the order dated 30th November 2005 passed by the learned Principal Magistrate, JJB whereby its attention has been drawn to the commission of cognizable offences by policemen of P.S.New Usmanpur. The said order describes in some detail the statements made by the four juveniles which prima facie show that serious crimes have been committed by the said policemen against the four respondents who were in their custody. Is the State suggesting that no policeman can even be accused of committing a custodial offence? Is it completely identifying itself with the suspects, to the extent it will seek to challenge any order that directs that the allegations made against them for commission of serious crimes against children should be investigated? Can this Court be unmindful of the increasing instances of custodial crimes committed by the uniformed gentry which have been documented in detail in the reports of the National Human Rights Commission over the past fifteen years? 8. In our system of criminal justice, the victims of crime trust our police to undertake a fair investigation and the State to prosecute the offenders.Therefore, in most criminal cases involving trial of cognizable offences there are only two parties: the State and the accused. The victims are participants in the trial only as witnesses. The trust reposed in the State that it will prosecute the offenders will stand betrayed if the State begins to identify itself with the accused and seek to defend them to the extent it will not even allow a case to be registered against them. The State in this case is doing precisely this. What is really disturbing is that it is in the process trying to shield policemen who are expected to be the enforcers of the law, the State is forgetting that there are several provisions in the Indian Penal Code (IPC) to deal with the offence of custodial violence. It is policemen who are invariably the accused when such offences are committed. And it is the State that has to be the prosecutor. It is incomprehensible that where policemen are accused of sexually abusing the children arrested by them and kept in police custody, the prosecuting agency (the State) will actually step into the shoes of the policemen and challenge the order of a court asking that a case be registered and the crime investigated. If this were to be permitted it would be a sad day for the rule of law as it militates against the scheme of criminal justice where trust is reposed by victims in the State that it will the prosecute the perpetrators of crimes even if, and perhaps particularly if, they are policemen.”
57. We think that the above leaves us in no doubt of the sheer abuse of these institutions. In view of the above, we recommend that in each of the States, all the children homes, observation homes, juvenile homes and women’s protective homes be placed under the legal guardianship of the High Court.We would also suggest that a Committee of Judges be formed which could undertake surprise inspections to make sure that the children are living in a healthy atmosphere. The said Committee of Judges may also constitute a Board of psychiatrists who would prescribe detailed psychotherapy for the children. Thereafter, aptitudinal tests must be undertaken and the children must also be reintegrated with their families on the one hand, and normal educational possibilities for mainstreaming should be made available.
58. We are of the view that it is be duty of the State to provide education free of charge upto undergraduate level for all children in need of care and protection and also with those who are in conflict with law who come in these institutions. We are also of the opinion that women in protective homes must be given therapy and they must also be made to lead a useful life and there must be new projects which should be devised so that their self-worth and self-esteem can grow up and they can be again mainstreamed into society.
59. We think only judiciary can give “ummeed”, an expression which a trafficked (and then rescued) child, which we met with, said that he would like the name of his organisation for street children to bear that name. He is a child who has seen the atrocities of life and described them to us. When we asked him, what he would like to do, he said, just as he was rescued by well-meaning social activists, he too would like to run an NGO for street children in the Jama Masjid area.
60. Similarly, we recommend that all homes for children with disabilities should be registered with the Registrar of the High Court. They should also be kept under the guardianship of the High Court and will ensure that special facilities are provided to these persons with disabilities by the State or by the institution under whose care they have been lodged.
61. We are also of the opinion that all the women’s protective homes must not be the erstwhile naari-niketan model but must actually be modernised, psychologically revolutionised, and useful homes of productivity. We are also of the opinion that widows’ homes in Vridavan, Mathura and Banaras be also revamped and structural changes be made and they should be under the legal guardianship of the High Court. It is necessary that widows must not be viewed with suspicion and must not be disempowered in our society. They too need to be brought into the mainstream. We all are now concerned about the mentally ill persons including women, who are institutionalised.
62. We are sorry to say that even the corporates have to understand that India is not a land of sweatshops. We also want to make it clear that the world must not consider India as a place where children can be used for the purpose of cheap labour and which labour will maximise in profits of investors. India i.e. Bharat, is the Union of States and consists of its children and those under privileged children for whom the founding fathers of the Constitution have enacted a Constitution.
63. We also recommend that in order to have complete figures of all missing children, every District Magistrate in the country report with the help of all his officers, supervised by a judicial officer to the High Court the total number of missing children in every District. Thereafter, the FIR should be registered. The High Court shall monitor the investigation of all these cases.
64. To conclude, we cannot be ignorant about the institutional apathy shown towards survivors of such heinous crimes. We would like to reiterate the observation made by one of us in the report submitted to the Supreme Court while acting as the Commissioner appointed by the Court in the case of Sheela Barse v. Union of India121:
“A disturbing nexus between the judiciary, the police and the Administration has come to light. Administrative apathy, authoritarian excesses and judicial connivance has led to a most shocking state of affairs negating the very basis of the existence of human life and democratic safeguards enshrined in the Constitution of India”.
65. The said observation holds true in the present situation as well and needs immediate cleansing and rectification.
66. As noticed above, the ITPA does not achieve the objective it is meant to achieve, primarily since it does not define ‘trafficking’, and is hence reduced to a legislation dealing with prostitution. This glaring vacuum has also been noticed by the NHRC, which has observed as follows:
“The Immoral Traffic (Prevention) Act, 1956 (ITPA), initially enacted as the ‘Suppression of Immoral Traffic in Women and Girls Act, 1956, is the main legislative tool for preventing and combating trafficking in human beings in India. However, till date, its prime objective has been to inhibit/abolish traffic in women and girls for the purpose of prostitution as an organized means of living. The Act criminalizes the procurers, traffickers and profiteers of the trade but in no way does it define ‘trafficking’ per se in human beings.”
67. We recommend that in place of the existing Section 370 of the IPC, a new section be inserted, which defines and comprehensively criminalises trafficking, which we have recommended later.