THE 2009 CONFERENCE OF THE INTERNATIONAL BAR ASSOCIATION MADRID, SPAIN

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1 Singh & Associates Advocates and Solicitors THE 2009 CONFERENCE OF THE INTERNATIONAL BAR ASSOCIATION MADRID, SPAIN OCTOBER 2009 INDIAN GOVERNMENT INITIATIVES & BUSINESS SECTOR APPROACH TOWARDS COMBATING OF CHILD LABOUR AND HUMAN TRAFFICKING Committee: Session Title: Criminal Law Committee and Corporate Counsel Forum Human Trafficking and Forced Labour in the Business Sector: Corporate Governance and Best Practices for preserving Corporate Integrity and Moral Authority 1

2 Forced Labour & Human Trafficking Forced Labour: According to Article 2.1 of the ILO, Forced Labour Convention 1930 (No.29): forced or compulsory labour shall mean all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily. 2

3 Human Trafficking (as defined by Article 3 (a) of the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Person, especially women and children which supplements the United Nations Convention against Transnational Organized Crime, adopted in 2000): recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other form 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 the payments or benefits to achieve the consent of a person having control over another person, for purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar il to slavery, servitude or the removal of organs. 3

4 Child: According to Article 1 of United Nations Convention on Rights of the Child 1989: A child means every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier. 4

5 REASONS FOR FORCED LABOUR AND HUMAN TRAFFICKING Economic Desperation and lack of sustainable income. Tricks and Allurements by Traffickers. Lack of education (especially among women and children). Extraneous Reasons like natural disasters e.g. drought, famine, etc. Free market but no effective laws to tackle trafficking. Growth of Criminal Networks. Difficulty in prosecuting due to the silence of victims. Un-ending demand for prostitution. 5

6 WHAT LEADS TO CHILD LABOUR?? Uncontrolled population growth and lack of education. Children are breadwinners of poor families. Willful child labour. Forced child labour. Unemployment. A child caught up in work and labour misses out on education and essential nourishment. Child labour also results in child trafficking. Children are used by drug peddlers for distribution of drugs. In domestic matters, children can be made to work easily and at the low wage. Child Labour not only affects the child in terms of health, education and childhood 6 but also the society at large.

7 CONSTITUTIONAL PROVISIONS IN INDIA AGAINST CHILD LABOUR, FORCE LABOUR AND HUMAN TRAFFICKING The Constitution of India : Supreme Law of Land Article 23 of the constitution of India prohibits the practice of debt bondage and other forms of slavery both modern and ancient. Article 24 states that no child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment. Article 21 of the constitution of India guarantees the right to life and liberty. The Supreme Court included right to work, right to be free from inhuman and degraded treatment, right to live with dignity and right to speedy justice within the ambit of Article 21 of the constitution. Article 21A guarantees free and compulsory education to all the children in the age group of 6-14 years. Ati l 39 i th St t t di t it li t d i th t th t d Article 39 requires the States to direct its policy towards ensuring that the tender age of children is not abused and that they are not forced by economic necessity to enter avocations unsuited to their age or strength. 7

8 LEGISLATIVE ENACTMENTS IN INDIA AGAINST CHILD LABOUR, FORCE LABOUR AND HUMAN TRAFFICKING The Bonded Labour System (abolition) Act, 1976 To eradicate all types of bonded labour, with the help of the government involvement. Providing legal framework for the rehabilitation of bonded workers. penal provisions The Immoral Trafficking (Prevention) Act, 1956 Prohibits trafficking for commercial sexual exploitation. Provides penalty ranging from seven years imprisonment. Child Labour (Prohibition & Regulation) Act, 1986 Expresses the strong desire of the legislature of prohibiting child labour. It intends to prohibit the engagement of children in certain employments Minimum Wages Act, 1948: Provides for fixation of minimum time rate of wages by state government. It also includes the fixation of minimum piece rate of wages, different occupations and localities or class of work and adult, adolescence, children and apprentices. The Plantation Labour Act, 1951: The State Government may make rules requiring every employer to make provision in his plantation for such recreational facilities for the workers and children employed therein as may be prescribed. Further, where the children between the ages of six and twelve of workers employed in any plantation exceed twenty-five in number, the State Government may make rules, requiring every employer to provide educational facilities for the children in such manner and of such standard d as may be prescribed. The Children Act, 1960: The Act was enacted to provide for the care, protection, maintenance, welfare, training, education and rehabilitation of neglected or delinquent children. 8

9 The Mines Act, 1952: It provides that no child shall be employed in any mines nor shall any child be allowed to be present in any part of mine, which h is below ground, orin any open cast working in which h any mining operations being carried on. The Merchant Shipping Act, 1958: The Act prohibits employment of children below the age of 14 in a ship except a training ship, home ship or a ship where other family members work. It also prohibits employment of young persons below the age of 18 as trimmers and stokers except under certain specific conditions. The Apprentices Act, 1961: It states that no person shall be qualified for being engaged as an apprentice to undergo apprenticeship training i in any designated d trade unless he is 14 years of age and satisfied such standards of education and physical fitness as may be prescribed. The Child Marriage Restraint Act, 1929: The Act provides for age of marriage i.e. 21 for male and 18 for female. Section 3 It is an offence for a male above 18 years but below 21 years to get married. Section 4 It is an offence if a male above 21 years married a girl below 18 years. Section 5 Whoever performs, conducts or directs any child marriage commits an offence. Section 6 - Parent or guardian in charge of the minor, promoting or permitting, or negligently failing to prevent child marriage commits an offence. It is a cognizable offence but no Court can take cognizance of any offence under this Act after the expiry of one year from the date on which the offence is alleged to have been committed. The Court may issue an injunction against any of the persons mentioned in Section 3, 4, 5 and 6 of this Act prohibiting such marriage. There are certain other laws which relate with human trafficking bonded/forced labour and child labour such as the Factories Act, theinter-state Migrant Workmen (Regulation of Employment and Conditions of Service) Act, Indecent Representation of Women (Prohibition) Act, 1986, andthetransplantation of Human Organs Act,

10 Penal Provisions in India to Check and Control Trafficking Indian Penal Code, 1860 Section Punishment for Wrongful Restraint. Section Punishment for Wrongful Confinement. Section 361 Kidnapping a minor from lawful guardianship. Section 362 Abducting any person. Section Punishment for Kidnapping. Section 363A - Kidnapping or maiming a minor for purposes of begging. Section Kidnapping or Abducting with Intent Secretly and Wrongfully to Confine Person. Section Kidnapping, abducting or Inducing Woman to compel her for Marriage, illicit intercourse Section 366A - Procreation of Minor Girl. Section 366B - Importation of Girl from Foreign Country. Section Kidnapping or Abducting In Order To Subject Person To grievous Hurt, Slavery, etc. Section Wrongfully Concealing or Keeping in Confinement, Kidnapped or Abducted Person. Section Kidnapping or Abducting Child Under Ten Years with intent to steal from its Person. Section Buying or Disposing of Any Person as a Slave Section Habitual Dealing in Slaves. Section Selling Minor for purposes of Prostitution, etc. Section Buying Minor for purposes of prostitution, etc. Section Unlawful compulsory labour. Section Punishment for rape. Section 376(f) - Rape of woman less than 12 years of age. Section Unnatural offences. 10

11 SIGNIFICANT ROLE PLAYED BY THE INDIAN JUDICIARY Article 141 of the Constitution of India mandates that the law declared by the Supreme Court shall be binding on all courts within the territory of India and also on the States and its officers. Even the directions issued by the Supreme Court in a decision constitute binding law under Article 141. Landmark judgments and guidelines of the Supreme Court of India People s Union for Democratic Rights v Union of India [(1982) 3 SCC 225] any factor, which h deprives a person of choice of alternatives ti & compels him to adopt one particular course of action may properly be regarded as force and any labour or service which is compelled as a result of such force, it would be forced labour where a person provides labour or service to another for remuneration which is less than minimum wages, the labour or service provided by him clearly falls within the scope and ambit of the word forced labour.asas described in Article 23 of the Indian Constitution. 11 contd

12 contd / People s Union for Civil Liberties (PUCL) v Union of India (UOI) [(1998)8SCC485]: The Hon ble Supreme Court of India held that where a person was engaged in illicit activity of procuring child labour by paying meager amount ranging between Rs. 500/- and Rs. 1500/- to the poor parents. The Children aged below 15 years so procured were forced into bonded labour. In the present case, he procured 4 children and one of them was beaten to death. The Supreme Court directed to Government of the State of Maharashtra to pay sum of amount Rs /- to brother of deceased child. The Hon ble Court further directed the government to pay Rs /- to the parents of other three children. The Court emphasized that such activities are clear violation of Fundamental rights guaranteed by the Constitution of India. M.C. Mehta Vs. State of Tamilnadu [AIR(1997)SC699]: The Hon ble Supreme Court of India gave certain directions regarding the manner in which the children working in the hazardous occupations were to be withdrawn from work and rehabilitated, as also the manner in which the working conditions of the children employed in non-hazardous occupations were to be regulated and improved upon. The Hon ble Court specifically ordered withdrawal of children working in hazardous industries and ensuring their education in appropriate institutions. Vishal Jeet V Union of India [AIR1990SC1412]: The Hon ble Supreme Court of India directed the Government to constitute a Central Advisory The Hon ble Supreme Court of India directed the Government to constitute a Central Advisory Committee (CAC) on Child Prostitution in In pursuant to follow the directions of the Hon ble Court CAC was established and subsequently, State Advisory Committees were also set up by State Governments. 12

13 DEPARTMENTS / MINISTRIES OFTHE INDIAN GOVERNMENT COMBATTING FORCED AND CHILD LABOUR AND HUMAN TRAFFICKING Ministry of Home Affairs deals with all matters related to law enforcement, and mainly the provisions of the Immoral Traffic (Prevention) Act (ITPA). The Ministry of External Affairs deals matters related to international treaties and protocols dealing with trafficking. The Ministry of Labour and Employment handles issues related to enforcement of labour laws. Ministry of Women and Child Development deals with issues concerning women and children trafficking and commercial sexual exploitation of women and children. Co-coordinating with the administrative branches, various NGOs and international agencies. Implementing a number of poverty alleviation programs 13

14 VARIOUS PROGRAMS AND SCHEMES INITIATED BY GOI TO COMBAT HUMAN TRAFFICKING AND CHILD LABOUR Education Programs: Sarva Shiksha Abhiyan [Education for All] Education Agenda in the Eleventh Five-Year Plan of the GOI Special Literacy Drive in 150 Districts Mid-day Meal Programs Rehabilitation Programs: The Indian Labour Ministry has introduced this program in around 9000 schools having an enrollment of approx million children, where children taken out from work are imparted education. The Ministry of Women and Child Development had formulated a National Plan of Action (NPA) to eliminate trafficking and commercial sexual exploitation of women and children in 1998 International program for Elimination of Child Labour (IPEC): ILO commenced IPEC Program in 1991 to contribute to the effective abolition of child labour in the world. India was the first country to sign MOU in Presently, there are three Projects going on in India under this program viz., INDUS Project, Andhra Pradesh Phase-II & Karnataka Project. Setting up of new institutions: National Human Rights Commission National Commission for Protection of Child Rights Anti-Human Trafficking Units Social Dialogue 14

15 FORCED LABOUR AND HUMAN TRAFFICKING IN THE BUSINESS SECTOR Recruitment Process: Around 12.3 Million victims of forced labour worldwide (ILO Report). More than 70% cases involve abuse from private agents. Lengthy supply chains Public recruitment agencies replaced by private recruitment agencies. Migration during Economic Crises: Migrants are ready to take risks to move to other places for higher wages. Traffickers benefitted by lack of knowledge and skills in workers. Trapped migrants are engaged in unrecognized sectors of the economy. Many of them have trafficked into sexual exploitation, domestic help and other unskilled jobs. 15

16 STEPS TO BE TAKEN BY THE BUSINESS SECTOR TO COMBAT FORCED LABOUR & HUMAN TRAFFICKING 1. By adopting ILO Principles {the 10 principles} 2. Watching over the supply chain and implementation of Code of Conduct 3. Functioning closer with stakeholders 4. Training and counseling programs 5. Public Private Partnerships: In 2008, the Indian Ministry of Woman & Child development formulated a Think Tank [FICCI, Home, Labour and Commerce Ministries, corporate bodies, representatives from apparel and garment industry, tourism and international organizations] to develop short, medium and long term strategy to prevent trafficking of human beings. In February 2008, a conference was held at the Vienna Forum where companies including Microsoft, Manpower and GAP had come together for the first time to 16 discuss how business can play its part in the fight against human trafficking.

17 CONCLUSION Human Trafficking and Child Labour are forms of modern day slavery and require a holistic, multi-sectoral approach to address the complex dimension of the problem. It is a problem that infringes the rights and dignity of the victims. It is an irony that despite the constitutional protections, enactment of laws and international conventions this illicit business of human trafficking and forced labour has been flourishing at a great extent. Poverty, unemployment, illiteracy, growing population and lack of enforcement are main factors behind the forced and child labour. Lack of precise data on the incidence of child labour and human trafficking is also a major issue and it affects efforts to come up with a systematic strategy and plan. For combating forced labour & human trafficking, strong political will, comprehensive policies and coordinated actions among the stakeholders are required more prominently active participation p of the corporate sector. 17

18 Though the problem of child labour, forced labour and human trafficking subsists, however it shall always be very important to point out that in India, these vices are not in existence only due to shortcomings in legal framework or enforcement of its provisions, rather it is a sociological problem which shall slowly and gradually (with the help of initiatives by government, corporates and individuals) cease to exist!! THANK YOU Mr. Manoj K. Singh Managing Partner Singh & Associates Advocates and Solicitors 18