SOP to handle Trafficking of Children for Child Labour

The trafficking of children for economic exploitation, bonded labour, forced labour, physical/sexual abuse and misuse is a heinous crime. The trafficking of children are vulnerable and need care and protection. After they are rescued they also need to be rehabilitated. It is, therefore, necessary that effective steps be taken for investigating of cases relating to trafficking of children for child labour and/or forced labour.

Advisory on Preventing and Combating Human Trafficking in India

The Ministry of Home Affairs issued a Advisory on Preventing and Combating Human Trafficking in India - F.No.15011/6/2009—ATC(Advisory) dated 9 September, 2009 to all states and UTs.

Following key points of advice have been worked out in collaboration with the related Ministries of Women and Child Development, Labour and Employment, and Health and family Welfare where the assistance/ action by the State Government/ Police would be required for the effective implementation/ enforcement of laws relating to Trafficking in Human Beings (THB) :

• Constitution of the State Advisory Committee for Preventing and Combating Trafficking of Women and Children for Commercial Sexual Exploitation
• Implementation of Immoral Traffic (Prevention) Act (ITPA), 1956
• Implementation of Juvenile Justice Act (JJ Act), 2000
• Implementation of Prohibition of Child Marriage Act (PCMA), 2006
• Capacity building of the State machinery
• Prevention of Trafficking
• Investigation & Prosecution
• Rescue and Rehabilitation

To view the advisory, click here.

Supplement to advisory issued in 2009

The following paragraphs supplements the previous advisory.

• The Article 23 of the Indian Constitution prohibits trafficking in human beings and forced labour and other forms of forced labour.
• As per Section 2 (K) of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as J] Act) juvenile or child means a person who has not completed 18 years of age. Section 2 (D) of the JJ Act defines "a child in need of care and protection" in detail.
• The trafficked child could suffer from any or all the handicaps stated in Section 2 (D) of the JJ Act and is clearly in need of care and protection. Sections 23, 24, 25, 26 of the JJ Act which deals with various forms of exploitation of the child are declared to be a cognizable offence under the JJ Act.
• The Criminal Law Amendment Act, 2013 has amended the Indian Penal Code on the specific offence of trafficking. Section 370 defines trafficking in detail. It is to be noted that the consent of victim is immaterial in determination of the offence of trafficking and the offence as already stated are cognizable.
• The Supreme Court in PUDR Vs Supreme Court in 1982 3SCC235 has elaborated on the issue of forced labour. Therefore, service without wages or with paltry wages; denial of choice of alternative avocations, denial of right of movement are all to be considered as forced labour. The trafficked children from the any one of these conditions are not only to be retrieved but the offender has to be charged as having committed a cognizable offence.
• The trafficked children are often those children who have gone missing. Wherever there are more than one case relating to trafficked children or forced labour, Section 155 (4) of CrPC makes it very clear that the case shall be deemed to be cognizable notwithstanding that the other offences charged are non—cognizable.

As regards missing children, the Supreme Court in the case of Bachpan Bachao Andolan Vs. Union of India and Others dated 10.05.2013, defined missing child in detail. It also stated that the child missing shall be treated within the meaning of JJ Act in need of care and protection as per the JJ Act. The Supreme Court has also stated that all cases of missing child will be prima facie treated as cognizable act (until proved otherwise) and a FIR filed accordingly. The registration of FIR should be stressed not only with reference to JJ Act but all Acts wherever children are the victims. Trafficked child upon recovery should be counseled by a social worker and proper investigation launched against the offenders/traffickers.

The AHTU shall take all necessary steps to investigate all the cases relating to trafficked persons with special emphasis on investigating crimes relating to trafficked children and women and treat the same as being part of organized crime and target the economics of crime syndicates. This may be done through cancellation of licences of establishments/factories, sealing, attachment and confiscation of property etc. During and after the rescue of the child, the SOP for investigating the crime relating to crime on trafficking for forced labour; developed by UNODC-MHA may be effectively utilized. The protocol for prevention, rescue, repatriation and rehabilitation issued by the Ministry of Labour and Employment in 2008 may be followed.

The rescue team should be multi-disciplinary and should comprise representative of Police or Labour, SDM or his representative, NGO/complainant, lady police/volunteer, and member of child welfare committee. Under no circumstance should any interaction between the child and the employer/trafficker be allowed. The children rescued must be sent immediately to child welfare committee and action taken under the JJ Act 2000. The Labour Department should be held responsible for filing of FIR and to initiate other necessary proceedings against the offender. The repatriation of the child should be a prime objective in the investigation to ensure that the child goes back to safety. The police shall take all necessary precaution for the safety of the child and/or other witnesses wherever cases of organized trafficking is investigated. The statement of victim should be recorded under Section 164 of CrPC and charge sheet be filed soon after investigation. There should also be an inquiry for home verification under the JJ Act before repatriation and child welfare committee in the home district shall be responsible for the wellbeing of the child. Before the repatriation of the child, efforts should be made by the Police to obtain as much information from the child about his/her traffickers as possible. This information must be uploaded to the district/state database on trafficked children and traffickers/employers. The Labour Department should initiate proceeding for immediately recovery of the fine of Rs.20,000 to be recovered from the employer under the Supreme Court guidelines of M.C. Mehta Vs. State of Tamil Nadu 1996 (6 SCC 756). After recovery, the said amount shall go to the Rehabilitation Cum Welfare Society of Child Labour in the native district of the child for his/her socio-economic and educational rehabilitation. The Department of Labour shall also initiate proceeding for the recovery of the back wages of the child as per the Minimum Wage Act, 1948.

Source :Ministry of Home Affairs, Government of India