% 1) 2) IN THE HIGH COURT OF DELHI AT NEW DELHI WP (CrI.) No.619 of 2002 With WP (CrI.) No.879 of 2007 Reserved On: May 24, 2010. Pronounced On: December 24, 2010. W.P. (CrI.) No.879 of 2007 SHRAMJEEVI MAHILA SAMITI through : VERSUS STATE & Others through: W.P. (CrI.) No.619 of 2002 KALPANA PANDIT Through: VERSUS STATE Through: . . . Petitioner Mr. Colin Gonsalves, Sr. Advocate with Mr. Divya Jyoti Jaipuria, Ms. Ritu Kumar and Mr. Tarig Adeeb, Advocates. ...Respondent Mr. Pawan Sharma, Standing Counsel for the State. Mr. Sachin Dutta with Mr. Shariq Mohammed and Ms. Poorva Nanawati, Advocates for the UOI. Ms. Meera Bhatia, Adv. for Labour Department. . . . Petitioner Ms. Aparna Bhat with Mr. David A. Advocates. . . . Respondent Mr. Pawan Sharma, Standing Counsel for the State. Mr. Sachin Dutta with Mr. Shariq Mohammed and Ms. Poorva Nanawati, Advocates for the UOI. Ms. Meera Bhatia, Adv. for Labour Department. CORAM HON'BLE MR. JUSTICE A.K. SIKRI WP (CrI.) Nos.879 of 2007 and 619 of 2002 Page 1 of 2 Digitally Signed By:AMULYA Signature Not Verified ' \ HON'BLE MR. JUSTICE AJIT BHARIHOKE 1. Whether Reporters of Local newspapers may be allowed to see the Judgment? 2. To be referred to the Reporter or not? 3. Whether the Judgment should be reported in the Digest? A.K. SIKRI, I. For orders, see WP (CrI.) No. 82 of 2009. DECEMBER 24, 2010 pmc WP (CrI.) Nos.879 of 2007 and 619 of 2002 JUDGE (AJIT BHARIHOKE) JUDGE Page 2 of 2 TlhaE H0GH COURT OF irjEU-ailAT Mt&W/ DLIL.JJ (Crl.) [N3o„a2 of 2009 WP (CriiJ No.SIS)of 'iOOi With %; 1) Mo„S2 oir .1 Reserved On; May 24, , PronouncedCM"'; Decembei ^ 2) IBACIHIIPANI EJACHAO &OR! Petitioners I , - Mr H5.. Phoolka, Sr. Advocate tl^iough . . Tivv/ari,Advocate. VEPxSU yiNlOlM OF WKiA &i OTiHllERS .Flespondent throuqh: Mr Pa»an Sh.rma, Standing Mohammed and Ms. Pooiva Manawati, Advocates^and Baldev Malilc, /-Xdvocate lor l UOI. ,,, Ms Aparna Bhat wiLli is. iviadhulilo Advocates for the Ms'^MeeraBhatia,Adv. for Labour fCtjl1 li\lo„lg79of throu_gh.: VERSUS TATE & Others Department. Petitioner Mr Colin Gonsaives,Sr. Advocate with ivir. Divya Jyoti Jaipuria, Ms. p.itu Kumar and Mr. Tariq Adeeb, Advocates. .Respondent I h- Mr, PaN/van Sharma. Standing Counsel for the State. W (Crl.) No. 619 of2002 &Others Page 1 of 54 3) •y 2002 Mr Sar-'nln Dutta with Mr. Shaiiq Mohamrf^pcl and Ms. Poorva Nanawati,Advocatesfor the UOl. IVis, Meera Bhatia,Adv. for Lafpoui Department. / KALiPAlNlA PAND8T' Th,-oucih: Ms. Aparna Bhat with Mr. David , Petitioner 1. 3. VERSUS Th rough: A. Advocates. . . . Respondent Mr. .Pawan Sharma, Standing Counsel for the State., Mr. Sachin Dutta with Mr. Shariq Mohammed and Ms. Pootva Nanawati,AVdvocatesfor the UOl. Ms. Meera Bhatia, Adv. for Laboui Dep&rtnient. jySTDCEAJC SDBOT HON^BLE M1P^= JUSTICE AJDT ilOIIC^ WhetherReportersof Local,newspapersmay be allowed to see the Judgment? 7 // 9 To be referred to the Reporteror not? , . , i'^ Whetherthe Judgmentshould be reportedin the Dig.sL. 1. in all these three writ petitionsfiled mpublic interest,adistuibing problem which' our society faces, day in and day out, has been highlighted. This conundrumrelatesto child trafficking. It is this menace prevailing in our society, which has ioeen raised in ali these writ petitions, albeit from differentperspective. However, the primary objectiveand aim of all these writ petitionsremains the same, viz., how to eradicate,or at least reduce to significant ^ , Paqe 2 of 54 WP (CrI.) No. 619 of2002 &Others 2. M'lo issue w€! shall take in order to appreciate the l^su.., level, this peril, note of the facts -whid-,have led to the fiHng of thesewrit petitions. nv K. " Kalpana Pandit is the petitioner.n this case whose daughter ,s espoused by sociai activist/Advocate,i.s. Aioarna r3hat. The petitioneris adomesticservant(Hiiteratelady), driven by poverty, working as dornest.servant,n various houses tron. time to tin.e to earn the minimum livelihoodfor her family and sustainingthe family for fulfillingthe daily needs. Her family has roots in West Bengal, However,due to acute poverty and incapableto get any employment,She came to Delhi somedn.ein 1995-96,l.e, five to Six years ago.beforefiling this writ petition. The respondentNo.4, viz., Sahyog Placement Sanstha Is a placement agency, which makes arrangementsfor providingdomestichelpsto the residents of this city, sometimein March. 1999, the petitionerhandedover her daughterto this Sanstha,whose sole proprietoris Sunita Sen, for placementof her daughteras domestichelp in some residence. The reason was that the petitionerhad fallen serious sick for a long duration, which compelledher to stay at home, as she was not able to work becauseof the said sickness. Family, in any case, neededsustenanceas therewas nobodyelseto supportthe fa«.ily financially,no alternativewas left to the petitionerto compel he, •daughterjharnato take up work, Pdge 3" of 54' WP'(Crl.)No. 619 of2002 Others 97 3. Jharna started working as domestic help at the residence of respondent No.4. She believed that her daughter would be safe and secure v\/ith Sunita Sen. According to the petitioner, she did not Icnow that Sunia Sen, who is one of placemeni; agent would place jharna as domestic help in other people's houses, 4. It is averred in the petition that in AVpril 1999 when the petitioner recovered from her illness, she went to the house of Sunita Sen to meet her daughter and then only she came to know that Jharna was working as housemaid at the residence of some Mr. & Mrs, K.aul in Noida, Uttar Pradesh. She was shocked and surprised as no prior consent of rhe petitioner was obtained before taking such a step and she was not even informed about this,. The petitioner pleads that with great difficulty, she managed to get the phone number of her daughter's employer and tried to contact her • daughter, Jharna on that phone. However, she was not permitted to talk with Jharna, The petitioner was disturbed and tensed at the sudden disappearance of her daughter, but coujd not be able to comprehend whom to approach for the help. She went to the respondent No.4 again and respondent No:4 had arranged the petitioner to talk 'with her daughter Jharna on telephone. However, she had no idea where the respondent No.4 had called. She was concerned and worried about the safety of her growling daughter and wanted to meet her on the occasion of Raksha • Bandhan. She along with her son went to the Noida house, the address whereof was provided to the petitioner on phone. WP (CrI.) NO: 619 of 2002 &.Others . ' Page4 of 54 # 7 However, she could not be able to meet her daughter there. She made repeated attempts for this purpose by visiting Moida again and again, but didn't succeed. Her continues requests made to respondent No.4 also did not yield any results. She even tried to approach Mehrauli Police Station, but was not provided with any help or guidance there as well. While she was reconcilingwith the tragedy that had struck her, after a lapse of one and a half years or so, she was informed that her daughter Jharna was nnissing since 29.08.2000 and the missing complaint had been lodged by Jharna's employer on 06.09,2000 to enquire about her daughter. The petitioner was shocked to hear this and got in touch with the respondent No.4. The respondent No.4 even refused to hand over the copy of the alleged niissing complaint. In these circumstances, the petitioner had no other option left but to approach" the police station and to seek help to trace her daughter. She lodged an FIR in the Vasant Kunj Police Station on 02,02.2001 under Section 363 of Indian Penal Code-. That was registered as FIR No.50 of 2001. However, according to her, no concrete stepswvere taken to investigate the allegation mentioned •in the FIR. The petitioner, viz., had approached the Juvenile Welfare Board (JWB) and filed a case. The JWB acted promptly on the petitioner's complaint and summioned the respondent No.4 to attend the hearings but they did not consider it as important enough to attend the hearing and give the information they had regarding the whereabouts of the petitioner's daughter. However, case did not progress much due to non-appearance of the l/l/P (CrI.) No. 619 of 2002 & Others Page 5 of 54 7J r0sponclsnti\lo.'<1'. Ths jWB had at last addressed a lettei to tne Deputy Commissionerof Police, Crime Brancin on 27.08.2001and requested for a thorougli investigationinto tlie incident, but no headway was made. She waited for quite some time, as she was in dark about the whereabouts of her daughter, Jharna. On 23.05.2002, she filed the instant petition in the nature of habeas corpus seeking direction against the respondent Mo,4 to. produce the petitioner's daughter,Jharna forthwith. The State of NCT Delhi is impleaded in petitionas the respondent No.l, the Commissioner of Police as respondent No.2, S.H.O., Vasant Kunj Police Station as respondent No.3, Sa:'hyog PlacementSanstha (owned by Ms. Sunita Sen) as respondetit No.4 and Juvenile, Welfare Board was impleaded as respondent i\io.5. 5. Obviously, it was treated as habeas corpus petition and notice was issued to all the respondents on, 30.05.2002. It was also directed that notice to the respondent Mo.4 be served through the S.H.O., ' Police Station, Vasant Kunj. juvenile Welfare Board will ensure that record is produced in Court alongwith the statement of respondent No.4 recorded by it. On the next date, i.e., 31.05.-2002, after perusing the report of the Probation Officer from JWB and the progress report from the investigation carried out by the Police in FlPx No.50/2001, this Court deemed it fit and proper to transfer the case to A\nti-Kidnapping Cell, Crime Branch, Delhi Police to carry out further investigation and trace out the petitioner's daughter. The Court also directed the employer of l/l/P (CrI.) No. 619 of 2002 & Others • Page 6 of 54 9^ - Jharna, viz. Mr. Veer Kaul and Mrs. Parnrrii Kaui to be impleacledas respondents. The matter went on from time to time, thereafter giving directions to the police time and again to trace^ out the missing giri, Jharna. 6. At the same time, the issue of exploitation of children working as domestic helps and childrengoing niissing in the process was also taken note of. During the discussions in this case, it transpired that many such placement agencies would place children, initially at some residence for domestic helps, but such children would ,ultimatelybe forced into the flesh-trade. Therefore, the Court also -deemed it proper to address this issue as well in that proceedings, the petitionwas also treated as public interest litigation. Keeping the importance or the issue involv€?d, an 1\JG0 known as Butter Flies intervened as was impleaded as respondent No.8. This aspect was highlighted in the order dated 04.10.2004 passed in this writ petition and we deem it proper to reproduce the same: • • "Two distinct issues arise for consideration in this writ petition. One of these relates to the tracing and production of the missing minor girl named Jharna ,Pandit. Reports submitted by the. investigating agency froni time to time show that steps to trace out the missing girl have been taken but without niuch success. iMs. Mukta Gupta counsel for the respondent submits that efforts to trace the missing minor will continue and that as and when she is recovered, she will be produced in. this Court for appropriate orders. • We need only say that the investigating agency shall.take effective steps in the matter and report the progress to this Courtfrom time to time. The second question that arises for consideration, relates to the functioning of different placement agencies working in the MCT of Delhi. It is pointed out by Ms. Arpana Bhatt that there are as many as 123 such agencies functioning in Delhi. These agencies apart from other placement work carried on by them engage themselves in placement of WP (CrI.) No. 619 of 2002 & Others Page 7 of54 children in various establishments including as domestic help. There is, according to Ms. Bhatt, no statutory control over the functioning of these agencies. The result is that children who are either picked up from the streets or brought from various other States to Delhi are first placed as domestic help and later shifted to other more hazardous work including some who are pushed into prostitution. The absence of any regulatory control over the functioning of these agencies which are run on commercial lines/for profit, according to the learned counsel, defeats the very spirit of the Juvenile Justice (Care and •Protection of Children) Act 2000. She submits that while section 31 of the'said Act vests the Juvenile Child Welfarq Committees with extensive powers, the absence of approj|riaterules and regulations for the exercise of that power^has virtually rendered the said provision nugatory. She states that the Child welfare Committees functioning in Delhi have received a number of complaints regarding abuse of the children working as domestic helps in households. Verification of these complaints have, according to her, proved that the children have been subjected to various kinds of indignities and harassment including sexual abuse. The record of the committees, if summoned for perusal would, according to the learned counsel, enable this court to issue directions for effectuating the provisions of the /Act. Ms. Mukta Gupta, learned counsel for the respondent; on the other hand, submits that the Government of Delhi would have no objection to the issue i'aised before this Court being examined and appropriate guidelines being evolved regulating the exercise of powers by the Child Welfare Committees under the Act. She submits that the Child Welfare Committees can be asked to submit a report regarding the nature of the complaints received by them alleging abuse of children in domestic and other establishments and the remedial steps which the committees have taken in this regard. She further states that the State sGovernment can examine the matter more closely in order to provide an appropriate statutory framework for the exercise of the poyvers by. the Committees by framing of rules under Section 68 of the Act. In the circumstances, therefore, we direct that the . Child Welfare Committee in Delhi shall, before the next date of hearing, submit to this Court a detailed report regarding the complaints received by them about child abuse, in case where childrerv. are placed with households to work as domestic servants/help, the nature of the allegation as also the action which the committees have taken on the same. The. Secretary, Social Welfare Department, Government of Delhi shall also remain present and indicate whether any rules have been framed or can be franned in terms of Section 68 read with 31 of the Act aforementioned to regulate the exercise of the powers by the committees and in particular to regulate the functioning of the. placement 79 • \NP (CrI.) No. 619 of 2002 & Others Page 8 of 54 agencies dealing witin domestic child laboui". The chairpersons of the two committees shall also be requested to remain pres.ent in the Court on that day along with the relevant recorc." 7. • .Magnitude of the problem was taken note of in tine orders of 25.10.2004 when the Chairman of Child Welfare Conimittee submitted their report in this behalf. We would be well-advised to reproduce that order as well: "We have heard counsel for the parties at some length. The Secretary, Social Welfare Department, Govt. of Delhi and the Chairman of one of the Child Welfare Committees functioning in D.eJhi are both present in person in obedience to the direction issued by this court on 4^'"' October, 2004. The Chairman of the Child Welfare Conimittee stated that there were a large number of complaints received by the Committee from time to time suggesting abuse of domestic child labour. She has filed before us a list of such cases in which complaints of abuse and maltreatment were received by the Committee. She submits that the Committee is often handicapped in dealing with such complaints because of lack of particulars regarding the placement agency and the employers. The Secretary,•••Social Welfare Department, Govt. of Delhi, on the other h^nd, submits that the qu&stion whether rules can and ought to be framed to regulate the functioning of the placement agencies is a matter that-shall have to be examined in greater detail at the Government level, before any definite step is taken in these proceedings. He seeks six weeks' time to have the matter examined and to place on record an affidavit indicating the stand of the Delhi State Government in regard to the need and possibility of framing of rules under Sections 31 and 68 of the Juvenile Justice (Care and protection of Children) Act, 2000. These proceedings shall, therefore, stand adjourned to be posted again on 14^" January, 2005, by which time the question whether rules can and ought to be framed under the Act aforementioned, shall be examined by the Government and a clearcut stand taken in that regard in an affidavit shall be filed in these proceedings. Order be given dasti to both the parties," 8. Jharna was ultimately traced out and the custody was handed over to the petitioner. Thereafter, this petition has proceeded to tackle WP (Crl.).No. 619 of 2002 & Cithers Page 9 of 54 the issues to regulate the functioning of the placement agencies especially who were dealing with domestic child labour and provides, women and children as domestic help so that such incidents do not occur in future through the instrumentalities of these placement agencies. W„P. CCrllJ Mo.ga off 2009 9. The petitioner in this writ petition as 'Bachpan Bachao', another N„G.O. in this public interest litigation, the problem which is. highlighted is thai; several thousand minors are kidnapped and trafficked from various states and brought to Delhi and sold for the purposes of prostitution, begging, drugpeddling, slavery, forced labour including bondage, and for various other crimes and who are still stranded in various parts of Delhi against their wishes and are waiting to be rescued. Thus, prayer herein made to direct to take respondents to take appropriate measures for the immediate rescue and release of all such minor children. Further, prayer is also made to the effect that directions are issued to the •respondent for the protection of fundamental rights of such children and for their proper rehabilitation, social reiiitegration and education who are released from various illegal placement agencies and other places in the NCT of Delhi. Direction is sought to the effect that the respondent should formulate and to bring into, immediate effect a specific and stringent law to deal with such illegal placement agencies. WP (CrI.) No. 619 of 2002 & Others Page 10 of 54 9^ 10. Highlighting the problem, all these placement agencies and absence of law to regulate them, it is averred that according to a survey, only 173 placement agencies are running in districts which is not correct at all. in fact, about 2300 illegal placement agencies are running at present inMihe GNCT of Delhi and in Saraswati Vlhar area alone which comes' under the jurisdiction of Saraswati Vihar •Police Station (North West District) form where 39 children were rescued, there are more than hundred placement agencies which are running illegally. The most common areas in which, illegal placement agencies are running without any fear or restrictions in Delhi are Saraswati Vihar, ShakurpuJ.J. Colony, Rani Bagh, Punjabi EJagh, Rohini, Pitampura, Chirag Dilli, Malviya Maga.r, Chitranjan Park, Govindpuri, Sangarn Vihar, Khanpur, Kotia Mubarakpur, Jamrnia Nagar, Okhia, Tuglakabad, Seelampur, Usmanpur, ..Welcome Colony, Laxminagar, Model Town, Kingsway Camp, Lajpatnagar and. janakpuri. That'most common states for human trafficking are State of Bihar, jharkhand, Orissa, West Bengal, Chattisgarh, U.P and Nepal from where mostly girls are kidnapped and trafficked. The most vulnerable districts in various states are as follows: Districts in Bihar : Gaya, Nawada, Aurangabad, Districts in Jharkhand : Ranchi, Simdega, Gumla, Laterhar, Durnka, Godda, Pakur, Lohardugga. Districts in West Bengal; Midnapur, 24 Pargnas, Maldha, Silliguri. Districts in U.P. . : Gonda, Bahraich, Auraiya, WP (CrI.) No. 619 of 2002 & Others Page 11 of 54 i) Districts in Nepal : Sihaha, Saptri, Sunsari, Makanpur, Kanchanpur, Jhapa and Mahendrapur. 11. The petitioner has also stated the circumstances under which this problem was brought to its notice and the steps are yet to be taken in that behalf. It is mentioned that on 09.01.2009, Hernbahadur had approached the office of Bachpan Bachao Andolan (I3BA) and requested to help in the rescue of his sister and sister-in-law from A\jay Thapa placement agency. In his application, he mentioned that his sister, sister-in-law and her two friends were promised to get job by Ajay Thapa. The said Hernbahadur was placed by Ajay Thapa in a factory and his sister, si.ster-in-law and their two friends were sent i:o work as domestic help. For the last one year, Hembahadur was unable to contact 'his sister and her friends. Ajay Thapa refused to provide him the contacts/addresses or his sister and other girls. This raised serious, doubts in Hembahadur's mind that the giris had been sold by A\jay Thapa and he got very concerned for their welfare and under these circumstances, he came in contact with BB/-\ activists and 'decided to take steps for finding and rescuing the girls. 12. The petitioner approached the Delhi Commission for Women on 12.01.2D09 and with its help, thereafter; a joint rescue operation was conducted on 13.01.2009. in the said operation, 35 girls and 03 boys were rescued trom some of these placement agencies 'WP (Crl.) No. 619 of 2002 & Others Page 12 of 54 afready named above. 23 out of 35 girls and three boys were below the age of 14. During the raid, the team of Delhi Commission for Women and the activists of Bachpan Bachao Andolan and officials of Deihi Police saw a lot- of objectionable iTiaterial including pornographic CDs, illicit literature, pregnancy • test kits and contraceptives, etc. raising doubts about the real purpose behind running of these placement agencies. All the rescued girls and boys were trafficked from jharkhand and West Bengal. Three rescued girls told that they were not given food from last three days. Most of the girls were staying at the office of placement agencies and forced to sleep in the roonns of boys. A clear picture of the same can be ascertained from the CD containing news report by a TV channel and the transcripts of the report which is being filed along with this'writ petition. It is also stated that DCW had first lodged a complaint before Police Station, Saraswati Vihar and then took them to Child Welfare Committee of Deihi Government, who sent these 23 minor girls to iMirmal Chaya and Nari Miketan for a short stay. The custody of three boys was given to Bachpan Bachao Andolan - Mukti /Ashrani. it is in this backdrop that various prayers including those mentioned above have been made in this writ petition. W@„e79 of 2007/ 13. This writ petition is filed by Shramjeevi Mahila Samiti.. which is an M.G.O. operating ir' Kolkata, West Bengal. Similar problem of trafficking, kidnapping, forced labour and bondage tjf 298 women WP (CrI.) No. 619 of2002 &Others p^ge 13 of54 and children is spelt out in this petition. These women and children were brought to Delhi from different villages of West Bengal. It is stated that on reaching Delhi, they were sent to certain households and some of thenn had been shii'ted from time to time in such a mianner that the parents/relatives of the victims are now unable to get in touch with them, .iMot only the promised wages are not paid,- but the women and children are being forcibly confined against their wishes and if any person attempts to get in • touch with these victims, then those persons were threatened by the placement agencies. Moreover, the petitioner has 'even blamed the police force and has levelled the allegations that these placement agencies are doing aforesaid illegalities in collusion "with police. According to the petitioner, they came to know of the problem when in May, 2007, over 1150 families from West Bengal had approached th6 petitioner's organization and complained that their wives, sons and daughters had been taken