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.
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.
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”
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.
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.
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.
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….”
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.
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:
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.
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.
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.
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.
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.
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.
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:
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.
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
.
.
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.
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.
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.
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
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.”
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…..”
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.”
We find that no reply has been made available by the Delhi Government.
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.
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.
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.
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.
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.
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.”
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
. 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).”
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).”
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.
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.
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.”
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.”
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.”
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.
”
“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.
”
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.
Report:
“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).
”
”
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.
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.
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.
In a case involving sanction for
pros
ecution against physical and sexual abuse in custody (State v. Rameez), Muralidhar, J. observed as follows:-
ecution 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.
”
”
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.
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.
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.
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.
. 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.
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.
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.
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”.
The said observation holds true in the present situation as well and needs immediate cleansing and rectification.
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.”
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.