Hitting the economics of organised crime

On the night of 21st November 2005, when Vivek Tyagi and I had prepared the PIL, we had not imagined that it in the months to come, it would change the country’s response mechanism on child protection. From being only a poverty-driven social justice issue, trafficking of children for forced labour and child labour also became criminal justice issue, infested with organised crime.

The history of trafficking for the purpose of slavery or for sexual exploitation, is almost as old as the history of human civilisation. The Indian Constitution prescribed the Right Against Exploitation as a Fundamental Right enshrined in Articles 23 and 24.

Despite these being constitutional mandated Fundamental Rights, the trafficking of children for forced labour as well as child labour was not prohibited or explicitly defined as a crime.

For the first time, as a result of various orders, judgments and enhanced understanding of laws that became a precedent through this case, the law defining and prohibiting trafficking was made in 2013, and the law prohibiting child labour till the age of 14 years came into existence in 2016.

In 2006 itself, the Government of India banned the employment of children till the age of 14 as domestic child labour and in dhabas (eateries) in India.

The same year, the High Court of Delhi directed the central government and Delhi state government that rehabilitation of children was the responsibility of the state and the state can-not abdicate from this responsibility by citing any NGO’s initiatives.

The roles and responsibilities of all the government departments, especially for the police to act and prosecute employers and traffickers in child labour cases, were first affixed on 15th July 2009 in the same case filed by us in November 2009. For the first time, child trafficking for labour was seen holistically and an ecosystem-level response was envisaged, including the role of principle employers. The Department of Education and the Municipal Corporation of Delhi were given responsibilities for prevention and ensuring access to education for all children. Police and Labour Department were tasked with the rescue of children and prosecution of employers. The Revenue Department was even empowered to recover fines from the employers as an arrear of land revenue, as a civil fine, even without conviction, and use this amount for the rehabilitation of the rescued children.

The overall institutional framework that currently exists in India for rehabilitation and education in cases of trafficking and child labour can be attributed, to a large extent, to the changes brought about by the High Court in this case, reiterated and expanded further in other similar cases, and eventually leading to the laws on trafficking and the employment of children being overhauled.

Child labour was also defined for the first time in this case. All these developments paved the way for the eventual complete ban on child labour in India till the age of 14 years, and in hazardous occupations and processes till the age of 18 years, in 2016.

What started as a strategic and angry response to the apathy of a few government officers laid the foundation for the prevention, protection, prosecution and rehabilitation of trafficked children for forced labour.

?While the recue and rehabilitation efforts began to take shape, there was a raid by the police and Labour Department in Najafgarh, Delhi, in 2011 in which 20 children were rescued from 19 dhabas (roadside eateries). All 19 employers of 20 child labourers deposited the mandatory fine of Rs. 20,000 each for the employment of children on the very day of the raid. I had never seen this happen so I went to these dhabas three days later, pretending to be a customer. As I ate or had tea at four of them, one after another, I asked their owners why they had deposited the fine. As a part of my act, I even told one, “These NGO people are all corrupt and had rescued poor children from my brother’s factory and we never paid a penny as fine.” The owner nonchalantly responded. “We will bring other children the next day and earn over Rs. 20,000 from them within two months. Who wants to waste time in courts and police stations? Better to pay and get it over with. As it is, lightning does not strike twice and who will come back now to check?”

I realised then that what these employers and traffickers wanted was, to save their time and money, rather than get entangled in court procedures away from their factories or shops. For the employers, the fine or penalty was not a deterrent as they would continue to employ children and recover their lost money by using these unpaid or marginally-paid trafficked bonded labourers. The parents, in most cases of trafficking, love their children and want them to have a better life. However, they are enticed or deceived into sending their children away, on the false promise or assurance of a better future, a skill or an education.

Whereas, for the traffickers, the child is a commodity to be sold and exploited, to be profiteered from again and again. For them it is all about the money. There is no fear like the fear of the loss of something one loves.

As trafficking is an organised crime, the only way to combat it was to hit the economics of it.

When the cost of procurement and replacement would exceed the margins of profit, where an employer would have to pay back fines, and back wages as per the minimum wage law, as well as spend time, energy, effort and money on lawyers, police and courts, trafficking would stop. So we went back to the same case and filed a fresh application for the rescue of children and recovery of fines, back wages and attachment of properties as proceeds of crime. While a law may only look at a crime from the narrow lens of ‘incidence’, justice would be served in the entire chain of prevention, protection, prosecution, rehabilitation, identification of illegal profits and their attachments and reparation for the victim as well as for the society. Eventually, the court directed the sealing of factories employing children, recovery of fines without conviction as an arrear of land revenue, recovery of back wages as per the minimum wages law and prosecution under stricter laws.

This is a learning for life I received that fateful day from the people who employed trafficked children at their eateries. I have always tried to impress this learning upon any person in law enforcement or judiciary or civil society I have had the honour of training or teaching.

Many times we do not attempt to take on a problem because we believe that the solution is impossible, or the problem is too big, or we are too small. Young activists, police officers, judges and others often take an issue head on because they do not have the baggage of knowledge, wisdom and experience that tells them that the problem is unsolvable. We took on this issue without knowing that it was impossible and hundreds of activists, police officers, lawyers and judges helped us, believing that it was the right thing to do.

--This is an edited excerpt from Bhuwan Ribhu's second book, "Just Rights: Why Justice Should be a Fundamental Right."