U.P. STATE LAW COMMISSTION
RESEARCH PROJECT ON
‘VICTIM COMPENSATION’
Submitted by:Animesh Kumar B.A.LL.B. (H), V Semester Amity Law School, Lucknow
ACKNOWLEDGMENT
My extreme gratitude is expressed to U.P. STATE LAW COMMISSION, LUCKNOW for providing me with a prospect of interning at their venerated organization. I would be indebted to Mr. S.K. PANDEY sir for granting me the permission to intern and for providing me the access to the resources of the legal department for completion of my research. I would be grateful to Mr. R.K. DWIVEDI (DY. DIRECTOR IJTR, Lucknow), for always extending a helping hand by explaining the finer points of industrial law and employees‟ issues. Their vast knowledge in the field of law is worth appreciating and one would consider fortunate enough to be trained under such eminent persons. Last but not the least; I would specially deliver my thanks to Ms. MOUSHMI CHATTERJEE (one of my classmate) for helping and supporting me throughout my course. It was an immense pleasure to work as an intern in the reputed law organization U.P. State Law Commission. It not only helped me to learn the theoretical aspect of law but also helped me to understand the intricacies involved in victim compensation.
Animesh Kumar
i
This project is dedicated to my Grand Parents
Late Mr. Bachan Pandey
& Late Mrs. Rukmin Pandey
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TABLE OF CONTENTS INTRODUCTION………………………………………..…………………………..……………01 THE PURPOSE OF COMPENSATION……………………………………………………….05 PRINCIPLES OF PROVIDING COMPENSATION TO VICTIMS OF CRIME…………..08 VICTIM COMPENSATION IN INDIA…………………………………………………………16 RECENT UPDATE………………………………………………………………………………..22 COMPENSATION & RESTITUTION TO THE VICTIMS OF CRIME…………………….28 RECENT EXAMPLES…………………………………………………………………………….42 RATIFICATION OF THE UN PROTOCOL ON HUMAN TRAFFICKING………………57 APPROACH HIGH COURTS FOR ACTION AGAINST WITCH-HUNTS………………..74 CONCLUSION AND SUGGESTIONS…………………………………………………………79 BIBLIOGRAPHY………………………………………………………………………………….81
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CASES CITED
o Delhi Domestic Working Women’s Forum v. Union of India and others o Prabhu Prasad Sha v. State of Bihar o Palaniappa Gounder v. Sate of Tamil Nadu o Sarwan Sing v. State of Punjab o Bhupindar Singh v. State of M.P. o Harikishan and State of Haryana v. Sukhbir Singh and others o Balraj Singh v. State of U.P. o Nilabati Behra v. State of Orissa o Rudal Sah v. State of Bihar o Bhim Singh v. State of J&K o Meja Singh v. SHO Police Station Zira o Ravikant Patil v. DG Police, State of Maharastra o Prem Shanker Shukla v. Delhi Administration o Mrs. Cardino v. Union of India o SAHELI v. Commissioner of Police o Gudalure Cherian v. Union of India o Bodhi Satta Gautam v. Subhra Chakraborty o State of Gujarat v. Hon'ble High Court of Gujarat o VishalJeet v. Union of India o Lakshmi Kant Pandey v. Union of India o Gaurav Jain v. Union of India o Bandhua Mukti Morcha v. Union of India o MC Mehta v. State of Tamil Nadu and Others
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VICTIM COMPENSATION
INTRODUCTION “Compensation” is understood differently, depending on the context and the circumstances. It is often confused with ―restitution‖ and sometimes used interchangeably. It is important to understand the legal definitions and connotations of the two words from the beginning. While compensation is generally regarded as payment or reparation for injury or harm, restitution on the other hand is a form of payment or action taken to restore the victim to the position he or she would have been but for the victimization. Victims of crime must struggle with a wide variety of physical, psychological, emotional, and financial problems caused by the crime they suffered. Victims may be left with physical injuries; the need to improve security measures or even move to avoid being victimized again; feelings of fear, anger, grief, and even shame; bills to pay for medical, counselling, and funeral services; lost income from missing work due to the crime, the time needed to get medical or other services to help in the recovery, and the time to participate in the criminal case; and long-term or permanent loss of support due to the victim‘s death or disability. Fortunately, resources are available to help many victims recover, and there are various sources of funding for these resources. This report presents a detailed examination of programs supported in part by one major federal funding source, Victims of crime. In this project the meaning used connotes a form of payment, most commonly in cash, to a person who has suffered harm as a victim of crime, specifically trafficking in person crime. It should be noted that compensation to a victim of trafficking in persons will not necessary remove the traumatic effects of the process of human trafficking but it will improve the chances of his/her psychological recovery and eventual reintegration into society as well as assuage his/her feelings. It will also offer economic empowerment and protection from being retrafficked. Until the 1970s victims of crimes were often forgotten by the criminal justice system. As a result, victims sometimes came to believe that they had fewer rights than the criminals who had injured them. In addition, some victims became so alienated from the criminal justice process that prosecutors had difficulty persuading them to testify at trial. This environment began to change in the 1970s with the establishment of victim compensation funds. Not until the 1980s, however, did a national movement for "victims' rights" spark wholesale changes in the criminal justice system. The modes of administering compensation to victim differ from one jurisdiction to another. In some jurisdictions, it is an administrative action while in some it is judicial. Whichever form is adopted or is in practice in your jurisdiction, it is important to ensure that the procedure of claiming compensation is made as simple, accessible and well outlined as possible. Any cumbersome procedure that frustrates and discourages victim from making claims will defeat the purpose of compensation. These factors are likely to result in victims having little confidence in
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the justice system and therefore reducing the likelihood that the victim cooperates with the system. International legal basis for compensation Article 25(2) of the UNTOC Convention requires States Parties to establish appropriate procedures to provide access to compensation and restitution for victims and requires that this right be communicated to victims. Article 14 of the UNTOC Convention requires States Parties to give priority consideration to returning confiscated proceeds of crime or property to a requesting State Party so that it can give compensation to victims. In addition, Article 6(6) of the Trafficking Protocol requires that States Parties to ensure their domestic legal systems contain measures that offer victims of trafficking the possibility of obtaining compensation for damage suffered.
Although the international basis for compensation is well defined, it is important to keep in mind that it is the implementation of these provisions in the domestic settings that may or may not create an enabling environment for victims to claim compensation. Example In a case of trafficking, a North African couple pleaded guilty after being charged with forced labour and concealing and harbouring an alien for holding their niece as a slave. In exchange for lodging and the chance for a good education, the victim cared for the defendants‘ young son, prepared breakfast and dinner, performed household cleaning chores, and worked weekends and summers without pay at the defendants‘ espresso stand. When the defendants learned of the victim‘s complaints of mistreatment, they assaulted her, threatened to report her illegal status in the country, withdrew her from school, and forced her to work longer hours at the espresso stand, without pay. In the court proceedings, the defendants were ordered to pay a large sum of money in restitution to the victim and one defendant was sentenced to six months of electronic home detention, 24 hours of community service and three years of probation. The other was sentenced to 90 days of electronic home detention, 60 hours of community service, and three years of probation.
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Example In a case of human trafficking, two affluent doctors and their son were convicted in a forced labour conspiracy of coercing for more than 20 years a young Pacific Islands national into providing domestic labour and services for them. The defendants allegedly told the victim that she would be imprisoned if she left their service and used a variety of other coercive means to break her will, including forbidding her from having social contacts, monitoring and limiting her mail, forbidding her use of the telephone, and requiring her to hide in her basement room when guests were in the house. The parents were sentenced to 48 months in prison and ordered to pay over a large sum in back wages to the victim for her 15-hour workdays over those two decades. Their son was sentenced to 120 days of home confinement; three years of supervised release, and ordered to pay a fine.
The Trafficking in Persons Protocol and the Organized Crime Convention Article 6, paragraph 6 of the Trafficking in Persons Protocol states: ―Each State Party shall ensure that its domestic legal system contains measures that offer victims of trafficking in persons the possibility of obtaining compensation for damage suffered‖. This means that when the possibility of obtaining compensation does not exist under national law, legislation may be required to establish appropriate schemes. The corresponding provision of the Organized Crime Convention, found in article 25, paragraph 2, requires that at least some ―appropriate procedures‖ are established to provide access to compensation or restitution. The Protocol does not specify any potential source of compensation. Consequently any or all of the following general options would probably meet the requirements of the Protocol: a) Provisions allowing victims to sue offenders or others under statutory or common law torts for civil damages; b) Provisions allowing criminal courts to award criminal damages (i.e. to order that compensation be paid by offenders to victims) or to impose orders for compensation or restitution against persons convicted of offences; c) Provisions establishing dedicated funds or schemes whereby victims can claim compensation from the State for injuries or damages suffered as the result of a criminal offence. The legislative framework establishing the mechanisms to make compensation claims is an important starting point for providing trafficked persons with access to compensation for harm suffered and wages lost. However, the mere existence of such laws is not sufficient. Victims of human trafficking have a right to receive compensation from the trafficker for the physical or mental harm suffered at the hands of the trafficker or because they did not receive 3
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any payment for their labour or services. Access to compensation is closely linked to other issues: Information. Trafficked persons are often prevented from gaining access to compensation because they do not know about their right to receive compensation and the necessary procedural steps to take. Therefore, information provided by law enforcement officers or private lawyers is an important prerequisite for such access. Confiscation of assets. Traffickers often hide their money or move it abroad, which prevents trafficked persons from enforcing their compensation claims. In order to overcome this obstacle, States should confiscate any property and money resulting from trafficking and use it to compensate victims. States should also strengthen international law enforcement cooperation to secure access to the traffickers‘ assets moved abroad.
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THE PURPOSE OF COMPENSATION Receiving compensation is important for victims of trafficking not only because of the financial component but also because it has a symbolic meaning.
At a societal level, awarding compensation acknowledges that trafficking is a crime. At an individual level, the victim‘s pain and suffering are acknowledged and compensation can constitute a first step towards overcoming trauma inflicted and abuses suffered. At a practical level, compensation can assist victims in rebuilding their lives. At a retributive level, compensation paid by traffickers can constitute a form of punishment and deter other traffickers.
Civil law procedures In most countries, victims can pursue a civil claim for compensation on the basis of a wrongdoing which has caused them loss in tort law or under contractual rights (fraud, assault, imprisonment, debt). It is also necessary to note that victims of trafficking may have rights in labour law regardless of the existence of any form of contract. Although such civil law proceedings may seem more accessible to a trafficking victim than criminal proceedings, as the police are not involved, they still require a perpetrator to have been identified and, if the victim is to receive compensation, the perpetrator must be within the jurisdiction and financially solvent. Damages will be calculated on the basis of national civil law and will usually include both moral and material damages. Criminal law procedures Some countries connect civil actions for compensation with criminal proceedings against the perpetrator. This means that a single trial both punishes the perpetrator and compensates the victim, thus reducing the stress on victims. This is also achieved in countries where payment of compensation is part of the sentence imposed on the perpetrator. Where civil proceedings are appended to a criminal case, there is the dual advantage of having two procedures rolled into one, and the prosecutor is responsible for gathering and presenting evidence on the liability of the perpetrator to pay compensation. In some countries, a court order for compensation to be paid by the perpetrator can be made at the sentencing. Criminal compensation calculations may be made on the same basis as in national civil law or on a completely different basis. These types of claim require a victim to have been identified by the authorities and for a perpetrator to have been prosecuted and found guilty in criminal proceedings. Prosecuting trafficking offences is difficult, however, because often the offender is unknown or has fled the jurisdiction or there is insufficient evidence of the involuntary nature of the work performed by the victim, or the victim is unwilling or unable to cooperate with law enforcement. 5
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SPECIAL FUNDS TO PROVIDE COMPENSATION CLAIMS Compensation can also be paid by or through the State. Some countries have established Stateadministered schemes for victims of violent crime. State-funded or State-subsidized compensation schemes have the great advantage of providing a guaranteed payment of compensation to the victim and it is not necessary for a specific perpetrator to be located or identified. A police report, together with a willingness on the part of the victim to assist the police with the investigation is usually sufficient. State schemes may also be relatively streamlined and un-bureaucratic, and quicker than civil proceedings. Compensation schemes may be funded from several sources, including: fines, confiscated property of the perpetrators, tax revenues, other means of State funding, donations from private individuals and institutions. In order for such funds to assist victims effectively:
There should be no exclusion on the grounds of ―illegality‖ (given that people who are trafficked rarely have legal status in their destination country) The process should be simple and efficient (given that most victims are promptly returned to their country of origin) Victims should be protected from re-victimization by the court process to the greatest extent possible
The compensation claim A claim can potentially be made up of several bases on which compensation are requested, including but not limited to:
Pain and suffering due to physical or psychological violence Medical expenses Unpaid or underpaid wages Reimbursement of illegal ―fees‖ paid to a recruitment or employment agency, or for smuggling or transportation ―Fines‖ imposed by traffickers for bad behaviour Excessive, fraudulent or illegal ―deductions‖ from wages for rent, subsistence, transport, tax or social security ―payments‖ Enforcement is far easier where assets have been traced, seized or frozen and confiscated in the course of civil or criminal proceedings. Aggravated, exemplary or punitive damages may be available to trafficking victims in some jurisdictions. They usually serve to punish a wrongdoer for particularly outrageous conduct, therefore having a deterrent element, and can be related to the wealth of the wrongdoer. These concepts will be novel to other jurisdictions but there is nothing to prevent States introducing 6
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such concepts where the types of action for which compensation is being claimed warrant a particularly punitive response as a matter of public policy. The quicker and easier a compensation scheme is to navigate, the more accessible it will be for victims, both internally and internationally. Specific challenges are posed by the transnational nature of trafficking in human beings. Victims who have changed jurisdiction face clear practical difficulties in pursuing a compensation claim across borders. They also face difficulties when a trafficker is transferred to another jurisdiction for prosecution or when a criminal or defendant in a civil/labour lawsuit has assets located mainly outside the territory. Some important things to ensure are:
Access to translators to overcome language barriers. Access to information about laws and procedures in the country where the claim is made. Efficient and comprehensive evidence gathering. Assistance to cover travel costs and in obtaining visas for attending hearings
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PRINCIPLES OF PROVIDING COMPENSATION TO VICTIMS OF CRIME International principles Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power1 In accordance with principles 8 to 13 of the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, compensation should include the return of property or payment for harm or loss suffered, reimbursement of expenses incurred as a result of the victimization, provision of services and restoration of rights. States should encourage the establishment, strengthening and expansion of national funds for compensation to victims of crime. Restitution 8. Offenders or third parties responsible for their behaviour should, where appropriate, make fair restitution to victims, their families or dependants. Such restitution should include the return of property or payment for the harm or loss suffered, reimbursement of expenses incurred as a result of the victimization, the provision of services and the restoration of rights. 9. Governments should review their practices, regulations and laws to consider restitution as an available sentencing option in criminal cases, in addition to other criminal sanctions. 10. In cases of substantial harm to the environment, restitution, if ordered, should include, as far as possible, restoration of the environment, reconstruction of the infrastructure, replacement of community facilities and reimbursement of the expenses of relocation, whenever such harm results in the dislocation of a community. 11. Where public officials or other agents acting in an official or quasi-official capacity have violated national criminal laws, the victims should receive restitution from the State whose officials or agents were responsible for the harm inflicted. In cases where the Government under whose authority the victimizing act or omission occurred is no longer in existence, the State or Government successor in title should provide restitution to the victims. Compensation 12. When compensation is not fully available from the offender or other sources, States should endeavour to provide financial compensation to:
1
www.un.org/documents/ga/res/40/a40r034.htm
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Victims who have sustained significant bodily injury or impairment of physical or mental health as a result of serious crimes; The family, in particular dependants, of persons who have died or become physically or mentally incapacitated as a result of such victimization.
13. The establishment, strengthening and expansion of national funds for compensation to victims should be encouraged. Where appropriate, other funds may also be established for this purpose, including in those cases where the State of which the victim is a national is not in a position to compensate the victim for the harm. Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law The relevant paragraphs of the Basic Principles and Guidelines (General Assembly resolution 60/147) read2: Restitution should, whenever possible, restore the victim to the original situation before the gross violations of international human rights law or serious violations of international humanitarian law occurred. Restitution includes, as appropriate: restoration of liberty, enjoyment of human rights, identity, family life and citizenship, return to one‘s place of residence, restoration of employment and return of property. Compensation should be provided for any economically assessable damage, as appropriate and proportional to the gravity of the violation and the circumstances of each case, resulting from gross violations of international human rights law and serious violations of international humanitarian law, such as: a) b) c) d) e)
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Physical or mental harm; Lost opportunities, including employment, education and social benefits; Material damages and loss of earnings, including loss of earning potential; Moral damage; Costs required for legal or expert assistance, medicine and medical services, and psychological and social services.
www2.ohchr.org/english/law/remedy.htm
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International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families3 The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (General Assembly resolution 45/158) stresses the right of migrant workers to receive compensation even in the case of their expulsion (art. 22, paras. 6 and 9; art. 68, Para. 2). Expulsion shall not prejudice any rights of a migrant worker acquired in accordance with the law of the State of employment, including the right to receive wages and other entitlements due to her or him. Before or after departure, the person concerned shall have a reasonable opportunity to settle any claims for wages and other entitlements due to him or her and any pending liabilities. Measures to eliminate the employment of undocumented migrant workers shall not impair their rights with respect to the ability to bring civil claims against their employers. European principles Council Framework Decision of 15 March 2001 on the standing of victims in criminal proceedings. This Framework Decision4 of the Council of the European Union is designed to afford the best legal protection and defence to victims, irrespective of the Member State in which they find themselves. To that end, member States are called upon to align their legislation so as to guarantee victims various rights, including those of compensation and refund of legal costs. In relation to victims‘ rights to compensation in criminal proceedings, article 9 of the Framework Decision states: 1. Each Member State shall ensure that victims of criminal acts are entitled to obtain a decision within reasonable time limits on compensation by the offender in the course of criminal proceedings, except where, in certain cases, national law provides for compensation to be awarded in another manner. 2. Each Member State shall take appropriate measures to encourage the offender to provide adequate compensation to victims. 3. Unless urgently required for the purpose of criminal proceedings, recoverable property belonging to victims which is seized in the course of criminal proceedings shall be returned to them without delay.
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www.un.org/documents/ga/res/45/a45r158.htm http://ec.europa.eu/justice_home/doc_centre/criminal/doc_criminal_ intro_en.htm 4
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European Convention on the Compensation of Victims of Violent Crimes 5 The European Convention on the Compensation of Victims of Violent Crimes (European Treaty Series, No. 116) of 1983 provides for victim compensation as follows: Article 2 1. When compensation is not fully available from other sources the State shall contribute to compensate: (a) Those who have sustained serious bodily injury or impairment of health directly attributable to an intentional crime of violence; (b) The dependants of persons who have died as a result of such crime. 2. Compensation shall be awarded in the above cases even if the offender cannot be prosecuted or punished. Article 3 1. Compensation shall be paid by the State on whose territory the crime was committed: (a) To nationals of the States party to this Convention; (b) To nationals of all member States of the Council of Europe who are permanent residents in the State on whose territory the crime was committed. Article 8 1. Compensation may be reduced or refused on account of the victim‘s or the applicant‘s conduct before, during or after the crime, or in relation to the injury or death. 2. Compensation may also be reduced or refused on account of the victim‘s or the applicant‘s involvement in organized crime or his membership of an organization which engages in crimes of violence. 3. Compensation may also be reduced or refused if an award or a full award would be contrary to a sense of justice or to public policy (ordre public).
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http://conventions.coe.int/treaty/en/Treaties/Word/116.doc
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Council of Europe Convention on Action against Trafficking in Human Beings6 The Council of Europe Convention on Action against Trafficking in Human Beings (Council of Europe Treaty Series, No. 197, adopted by the Committee of Ministers on 3 May 2005 and opened for signature in Warsaw on 16 May 2005), contains several provisions about compensation, including the following key article: Article 15 Compensation and legal redress 1. Each Party shall ensure that victims have access, as from their first contact with the competent authorities, to information on relevant judicial and administrative proceedings in a language which they can understand. 2. Each Party shall provide, in its internal law, for the right to legal assistance and to free legal aid for victims under the conditions provided by its internal law. 3. Each Party shall provide, in its internal law, for the right of victims to compensation from the perpetrators. 4. Each Party shall adopt such legislative or other measures as may be necessary to guarantee compensation for victims in accordance with the conditions under its internal law, for instance through the establishment of a fund for victim compensation or measures or programmes aimed at social assistance and social integration of victims, which could be funded by the assets resulting from the application of measures provided in article 23. Office for Democratic Institutions and Human Rights of the Organization for Security and Cooperation in Europe7 The OSCE Office for Democratic Institutions and Human Rights conducted an eight country study to review systems and practice of awarding compensation to trafficked and exploited persons in Albania, France, Moldova, Romania, the Russian Federation, Ukraine, the United Kingdom and the United States, representing different legal traditions within the OSCE region. A background paper on the study, entitled ―Compensation for trafficked and exploited persons in the OSCE region‖ was prepared for a workshop on the issue held in Barcelona, Spain, from 10 to 12 December 2007. It reported that there were various ways in which compensation can be paid: State-funded or subsidized compensation schemes ―Damages‖ paid by the person responsible for loss or injury through criminal or civil proceedings Compensation through labour court proceedings 6 7
www.coe.int/t/dg2/trafficking/campaign/Docs/Convntn/default_en.asp www.osce.org/odihr/publications.html
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In assessing the effectiveness of compensation systems, the background paper found, inter alia, that: Access to other rights, so-called ancillary rights, such as advice services, security, legal, social and medical assistance as well as residence permits, for the duration of a claim procedure, is crucial to making compensation schemes accessible and effective for trafficked persons. The offence of trafficking may not be the offence prosecuted in a particular case, even though it exists in national law. This in turn may affect the victim‘s eligibility for compensation. The effectiveness of a compensation system is dependent on its overall legal environment; therefore efforts to improve compensation schemes may be fruitless if the rule of law is not adequate in a particular country and unless broader rule of law reforms are undertaken at the same time. PROMISING PRACTICE Assistance and Compensation to Crime Victims Act (Bulgaria) At its plenary sitting on 18 December 2006, the National Assembly of Bulgaria adopted the Assistance and Compensation to Crime Victims Act, which provides for the compensation of victims of crime, including persons who have been trafficked, and for the provision to them of support, such as medical assistance and legal advice. The authorities are given the responsibility of informing victims of such rights. New South Wales Victims Compensation Tribunal (Australia) 8 The New South Wales Victims Compensation Tribunal was established under the Victims Support and Rehabilitation Act 1996, and consists of magistrates who determine appeals against rulings and make orders for recovery of money from convicted offenders, compensation assessors who make determinations in compensation claims and approve counselling applications, and tribunal staff who provide administrative support in the processing and determination of compensation and counselling claims, appeals and restitution. In May 2007, the Tribunal awarded compensation to a Thai woman who was trafficked to Australia as a child for the purpose of sexual exploitation. Law on Combating of Trafficking in Persons and Sexual Exploitation of Children Law No. 3 (1) of 2000 (Cyprus) By virtue of article 8 of this law, victims of exploitation have a right to special and general damages from their perpetrators. In assessing such damages, courts can take into account the 8
www.theage.com.au/articles/2007/05/28/1180205160434.html
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extent of exploitation, the benefit the perpetrator derived from the exploitation, the extent to which the future prospects of the victim were adversely affected by having being trafficked, the culpability of the offender and the relationship of the offender with the victim. Special damages can include all costs incurred as a result of the trafficking, including the cost of repatriation. Israel Legislation enables the Government to seize traffickers‘ assets for use in the rehabilitation of victims and for compensation. Nigeria9 The National Agency for the Prohibition of Traffic in Persons and other Related Matters of Nigeria was established pursuant to the Trafficking in Persons (Prohibition) Law Enforcement and Administration Act 2003. That Act, as amended in December 2005, provides for the creation of a trust fund to provide for victims‘ needs while they are in the care of the Agency and to provide them with compensation. The fund is to be derived from the auction of the seized and forfeited assets of traffickers. The Victim‘s Support Manual of the Agency states that a trafficked person has a right to compensation against his or her trafficker for economic, physical and psychological damage. Serbia Victims are able to file civil suits against traffickers. Victims pursuing criminal or civil suits are entitled to temporary residence permits and may obtain employment or leave the country pending trial proceedings. Thailand The draft prevention and suppression of human trafficking act criminalizes all forms of trafficking and provides for greater care and compensation for victims. The Former Yugoslav Republic of Macedonia Victims can institute civil proceedings against traffickers to claim damages and compensation. Hong Kong Special Administrative Region of China Victims may initiate civil proceedings for damages or compensation arising from injuries sustained as a result of being trafficked.
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www.naptip.gov.ng/victimsup.htm
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RECOMMENDED RESOURCES Global Alliance against Traffic in Women, “Material justice: seeking compensation in trafficking cases”10 In this issue of its Alliance News, GAATW provides overviews and analyses of avenues of compensation for trafficked persons. Organization for Security and Cooperation in Europe, National Referral Mechanisms: Joining Efforts to Protect the Rights of Trafficked Persons; a Practical Handbook11 The OSCE national referral mechanisms handbook discusses compensation and seizure of criminal gains or assets. In section 5 of the handbook, types of compensation victims may be entitled to be examined, as well as the mechanisms by which such compensation can be delivered. “Compensation for trafficked and exploited persons in the OSCE region” 12 This document was prepared by Katy Thompson and Allison Jernow for the workshop on compensating trafficked and exploited persons in the OSCE region, organized by the OSCE Office for Democratic Institutions and Human Rights in Barcelona, Spain, from 10 to 12 December 2007. Civil Litigation on Behalf of Victims of Human Trafficking13 This manual on civil litigation by Kathleen Kim and Daniel Werner was published in 2005 by the Legal Aid Foundation of Los Angeles. Legislative Guides for the Implementation of the United Nations Convention against Transnational Organized Crime and the Protocols Thereto14 The UNODC legislative guides to the Organized Crime Convention and its Protocols provide some guidance on those provisions pertaining to compensation.
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Alliance News, Issue 27 July 2007-www.gaatw.net/publications/Alliance%20News/July2007/Alliance News_July07final.pdf 11 www.osce.org/documents/odihr/2004/05/2903_en.pd 12 www.osce.org/odihr/publications.html 13 www.lafla.org/clientservices/specialprojects/trafres.asp 14 www.unodc.org/unodc/en/treaties/CTOC/legislative-guide.html
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VICTIM COMPENSATION IN INDIA Victims of any crime and of human rights violations (regardless of their legal status) have a right to be compensated for the losses sustained due to the crime committed on her/him. Compensation can be sought through criminal, civil or administrative procedures, and can be awarded for material (including unpaid wages and medical expenses) and non-material (such as for pain, suffering and trauma) damages). The victim of a criminal act can claim for compensation from the offender as part of a criminal case. Compensation has to be ordered by the court and is part of a guilty verdict. In criminal cases victims can directly apply for compensation and thus, it is important that prosecutors are aware of the existence of this right to request the judge to make such order. Trafficked persons, as with all victims of human rights violations have a right to a remedy. This means they have a right to access criminal, civil and/or administrative procedures for seeking financial redress – compensation for material and nonmaterial damages resulting from the crime committed to them, unpaid wages, restitution from the offender and other forms. The Legal Professionals should lobby with their governments for such compensation which is. Once such compensations become mandatory there will be reverse pressure on the Law enforcement to break the criminal networks which In India the National Commission for Women has proposed a Criminal Injuries Compensation Board for the payment of compensation to victims of rape. This proposal has been done on the Directives issued by the Supreme Court of India in the case Delhi Domestic Working Women’s Forum V. Union of India and others15 had directed the National Commission for Women to evolve a ―scheme so as to wipe out the tears of unfortunate victims of rape‘‘ The Supreme Court observed that having regard to the Directive principles contained in the Article 38(1) of the Constitution, it was necessary to set up criminal Injuries compensation Board, as rape victims besides the mental anguish, frequently incur substantial financial loss and in some cases are too traumatized to continue in employment. The Court further directed that compensation for victims shall be awarded by the Court on conviction of the offender and by the Criminal Injuries compensation board whether or not a conviction has taken place. The Board shall take into account the pain, suffering and shock as well as loss of earnings due to pregnancy and the expenses of child birth if this occurs as a result of rape. A Statistical Overview: While very little data is available on acid attacks in India some studies have reported an increasing trend in cases relating to acid attack. According to a study 174 cases of acid attack were reported in India in 2000. This was a per capita incidence of about 1/15 of that of Bangladesh, which has the highest incidence rate as well as the highest number of acid attack
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JT 1994 (7) 183
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cases in the world. However, the absolute number of cases was approaching those of Bangladesh. 16 35 cases of acid attacks were reported in Karnataka between 1999 and 200417. This figure does not include victims that do not report their case because they fear further violence or being socially stigmatized. In this regard, the Campaign and Struggle Against Acid Attacks on Women (CSAAAW) noted one incidence in Bangalore in July 2004 that was not included as part of the reported cases partly because the victim and her family have opted not to go public with their trauma18. The number of cases added up to 53 by 2006 in Karnataka and, as reported by the CSAAAW, verdicts were given in only 9 of these 53 cases 19.A newspaper report20 put the total number of acid attacks as 60 by 2007 in Karnataka alone adding more cases till February 2007. In most of these cases Hydrochloric and sulphuric acid were used and all the victims were women. The victims in Karnataka were very young women between 16 and 25 years of age, and were attacked by men known to them. Most attacks took place in public places or at home 21. These cases showed the kind of injuries that victims of acid attack suffered. The injuries range from burns to permanent disfigurement to death. In many acid attacks the victim suffers a slow and painful death. On the other hand, some victims who do survive the attack like Hasina 22 (in April 1999) and Shruti (in October 2001) are permanently disfigured, maimed and confined to homes for life.23 13Acid attack survivors are physically, psychologically and socially traumatized. The physical extents of their injuries are deep, permanent and have a direct impact on their psychological well-being and social functionality. Hydrochloric, Sulphuric and other acids all have a catastrophic effect on human flesh. These corrosive substances cause the skin tissue to melt. The bones of victims become exposed and sometimes the acid dissolves the bones too. Permanent scars as can be seen in Hasina‘s 24 case disfigure a human being‘s body for life. Furthermore, if acid enters the eyes of the victim during an attack, as is common in acid attack cases, it damages these vital organs permanently. Many acid attack survivors have lost the use of one or both eyes.
16
Acid Attacks: Bangladesh's Efforts to Stop the Violence, Jordan Swanson, Harvard Health Policy Review Archives, Spring 2002; Vol 3, No 1 17 Burnt Not Defeated, Report by CSAAAW, April 2007, CSAAAW Bangalore publication 18 The Hindu, Another Face of Violence, 15.08.2004 19 The Hindu, PIL filed for steps to curb acid attacks, 20.09.2006 20 The Hindu, The ‗acid test‘: will Government regulate sale of deadly chemicals?, Bageshree S. and M.V. Chandrashekhar, 5 February 2007 21 Deccan Herald News Service, Bangalore, Acid test of Humanity, Bala Chauhan 22 State of Karnataka Vs. Joseph Rodrigues, Decided by the Hon‘ble Karnataka High Court on 22/8/2006 23 The Hindu, The ‗acid test‘: will Government regulate sale of deadly chemicals?, Bageshree S. and M.V. Chandrashekhar, 5 February 2007 24 supra
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U.P. State Law Commission | Animesh Kumar/Amity Law School, Lucknow
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As a result of disfigurement and disability victims are permanently debilitated and are forced to give up their lives, their work, and their education. In this regard, compensation to cover vital surgeries for victims who can no longer support themselves becomes imperative. However aside from compensation there are other points as well that the law should be sensitized to when it comes to dealing with acid attack victims. In an interview with the Hindu newspaper CSAAAW‘s lawyer, Sheela Ramanathan, pointed out that acid attack victims had to be handled separately as their situation entails a series of ―medical complications, social stigma, psychological trauma, gender bias and a complete loss of livelihood.‖25 Ms. Ramanathan particularly drew attention to the medical negligence on these victims: "Medical awareness on the mode of treatment is also abysmal," "(t) here have been cases where coconut oil has been applied on the affected area and the victim wrapped in blankets. Such mishandling can cause irreparable damage."26 Acid attacks and their Consequences As stated earlier acid attacks are a form of violence against women, where the perpetrator splashes a person or object with acid in order to deface or kill them. 27 Although acid throwing, also known as vitriol age, has been a form of violence known to be committed throughout history, there has been a steep rise in the cases documented in recent years, particularly in certain South Asian countries. Some of this increase has been attributed to better documentation of cases and also to the fact that victims of attacks have begun to report an attack more often. However, there appears to be a substantive increase in the number of acid attacks that are being committed in recent times due to various factors. Acid attacks are seen as one of the most vicious crimes as it causes perpetual suffering to the victim. As acid melts flesh and even the bones of a person, it causes an unparalleled degree of pain to the victim and leaves her mutilated and scarred as well as giving permanent disabilities at times such as blindness. Victims face lifetime physical, social, psychological and economic consequences. Some of the well-known effects of acid are as under: Acids are corrosive substances that will cause visible necrosis (death) of human skin tissue and will even corrode a metal in higher concentration. They can cause serious poisoning; burning and serious injury can result from exposure to strong acids.
25
The Hindu, PIL filed for steps to curb acid attacks, 20.09.2006 ibid 27 Wikipedia encyclopedia 26
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U.P. State Law Commission | Animesh Kumar/Amity Law School, Lucknow
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Commonly available acids include Sulphuric acid, Hydrochloric acidHydrofluoric acid, Phosphoric acid etc. Acids are used in laboratories and factories/industries. In an acid attack the skin is the main organ of contact. The effects of acid on the skin may include redness, and burns. In severe cases, it could lead to shock and death. Some other effects include permanent hair loss and scaring. If inhaled in large quantity it can also lead to pulmonary disorders. SALIENT FEATURES OF THE SCHEME OF REHABILITATION OF TRAFFICKED VICTIMS IS AS FOLLOWS28: DISTRICT MONITORING COMMITTEE – The State Government shall establish in every District, a Monitoring Committee, which shall be headed by the Superintendent of Police of the District. The committee shall comprise of the following other members, whom the District Collector/District Magistrate would nominate: I. II. III. IV. V.
A police officer, preferably a woman A woman social activist or a counselor; A Lawyer A Medical doctor; A representative of the Panchayati Raj Institution or Municipality
The District Monitoring committee shall perform the following functions: A. To arrange for psychological and medical aid and counseling to the victim. B. To arrange for legal aid to the victim in filing the FIR till the conclusion of the trial; C. To initiate suitable measures to ensure the protection of the victim and witnesses till the conclusion of the trial. D. Monitor and expedite the progress of the investigation. E. To aid and assist in opposing bails, filing appeals and making application for protection of the victim. F. In cases of young victims, to see that they receive education or professional training or training for self-employment. G. To assist them in securing employment. H. To provide the required psychiatric treatment/counseling I. To facilitate the victims‘ rehabilitation. J. Initiate action so as to ensure Anonymity of the victims.
28
http://www.ncw.nic.in/schemeforrehabilation.pdf)
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K. Ensure that Interrogations of the victim be conducted by female police officers. During all stages of interrogation and examination of the victim or the applicant, at least one member of the DMC is present. L. To arrange shelter to the victim, for such period as the circumstances warrant. M. And such other functions as may be deemed expedient and necessary by the committee given the peculiar facts and circumstances of each case; PROCEDURE FOR TRANSACTION OF BUSINESS BY THE DISTRICT BOARD (CIRRB): A victim, or her legal heir or any person/voluntary organization espousing the cause of women, or DMC may apply to the District Board for financial relief and rehabilitation in accordance with the provisions of this Scheme. Where the legal heir is:— i. ii.
iii. iv. v.
A child, the application may be made on his behalf by a parent or guardian or by any voluntary organization. A mentally ill person within the meaning of the Mental Health Act, the Application may be made by the person with whom the victim normally resides or a duly authorized medical officer or a voluntary organization; or by a parent/guardian. An applicant shall submit the following documents, as applicable, with the application: Medical certificate, where the application is being made by or on behalf of the victim; or The death certificate of the victim, where the application is being made by a legal heir.
Copy of FIR/Complaint. On receiving the application and after having been prima facie satisfied that a case of rape has been made out, the Board shall order an interim financial relief of Rs.20, 000/-. The Board shall as far as possible grant the interim relief within a period of three weeks from the date of receipt of the application; Before awarding the interim and other relief‘s, the Board shall satisfy itself about the claim, make a preliminary assessment about the nature of the claim as well as take into account the medical report and other evidences; The Board shall take the assistance of the District Monitoring Committee before arriving at any decision. The Board may take other measures for the purposes of the rehabilitation or any special needs of the victim in addition to the financial relief. In case of victims who belong to schedule caste / schedule tribes, the provisions of the scheme shall be in addition to the provisions prescribed for grant of relief under the scheduled caste and the scheduled tribes (prevention of atrocities) Act 1989. However, the District Monitoring Committee while deciding the relief under this scheme shall take into account the compensation payable to the SC/ST victim under that Act. 20
U.P. State Law Commission | Animesh Kumar/Amity Law School, Lucknow
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The Board shall dispose the application for relief and rehabilitation within one month from the date on which the complainant gives her evidence or within one year from the date of receipt of the application whichever is earlier; In deciding the application for financial relief, the Board shall be guided by, but not completely controlled by, the stand of the applicant in the trial. The Board shall release balance amount of RS 1.30 Lakh and any amount unspent towards relief and rehabilitation measures to the victim subject to the fixed limit as prescribed. The Board shall as far as possible, award financial and other relief‘s, as per the heads specified in the scheme. Award the compensation to the victim in lump sum subject to a maximum of Rs.2, 00,000/-. While awarding the final relief, the Board shall take into account the interim and other reliefs granted. The Board shall be guided by the peculiar needs of the victim in deciding the amount of compensation to be granted in each case; The financial relief that is awarded by the Board is in addition to rehabilitation measures that the Board may suggest/ administer in each case. In cases where the victim is a minor, the amount shall be paid to her guardian or next friend after satisfying itself about the legitimacy of the person for relief and rehabilitation of the victim; The Board shall keep the Best interests of the victim in mind at all times; The Board May reject any application where it is of the considered opinion that:i.
ii. iii.
The applicant failed to take, without delay, all reasonable steps to inform the police, or other body or person considered by the Board to be appropriate for the purpose, of the circumstances giving rise to the injury; or The applicant failed to co-operate with the police or other authority in attempting to bring the accused/assailant to justice; or The applicant has failed to give all reasonable assistance to the authority or other body or person in connection with the application;
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U.P. State Law Commission | Animesh Kumar/Amity Law School, Lucknow
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RECENT UPDATE The Code of Criminal Procedure 1973 as amended by The Code of Criminal Procedure (Amendment) Act 2008 (5 of 2009) has now an added provision in the form of the section 357(A) on victim compensation. Section 357- A (1) Every State Government in coordination with the Central Government shall prepare a scheme for providing funds for the purpose of compensation to the victim or his dependents that have suffered loss or injury as a result of the crime and require rehabilitation. This added provision will now be an important tool in the hand of activist to push forward for victim compensation. This is strengthens the provision of Victim Protection in SAARC Protocol. CRIME VICTIMS’ COMPENSATION Crime can leave victims and their families with bills for medical, counselling, and funeral services; with lost wages from missing work to receive services or participate in the criminal justice system; with long-term or permanent loss of support for the family because the victim was killed or left disabled; and with the financial costs of a number of other consequences of the crime, such as the need to improve security measures or even move, to avoid repeat victimization. Some victims have means to meet these expenses, such as private insurance policies, employment-related benefits, or access to public benefits. However, many victims cannot pay crime-related expenses on their own. Crime victims‘ compensation is available to some of these victims, so that they do not have to bear the financial burdens of crime. Compensation was the earliest public response to victims of crime, with the first program established in 1965. Compensation programs are run by state governments with state and federal funding; all 50 states, the District of Columbia, and three territories now have compensation programs. Compensation is housed in a wide variety of state agencies, including independent agencies, various criminal justice agencies, human service agencies, labour agencies, and financial administration agencies. Compensation programs make payments to victims, their survivors, or those who have provided services (such as hospitals, mental health counsellors, or funeral homes) necessitated by the crime. These programs are funded by allocations from the federal Crime Victims Fund (CVF), administered by OVC, and by state funds. Like the CVF, which is offender-generated revenue, most of the states raise their funds from criminal offenders rather than tax revenues.
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In the Delhi Domestic Working Women‘s Forum case 29 the Supreme Court of India had pronounced upon the need by the government to setup a Criminal Injuries Compensation Board for rape victims within 6 months. The Supreme Court had suggested that this board should give compensation whether or not a conviction takes place. The Supreme Court explained the justification for this proposal as under―It is necessary, having regard to the Directive Principles contained under Article 38(I) of the Constitution of India to setup Criminal Injuries Compensation Board. Rape victims frequently incur substantial financial loss. Some, for example are too traumatised to continue in employment. Compensation for victims should be awarded by the court on conviction of the offender and by the Criminal Injuries Compensation Board whether or not a conviction takes place. The board will take into account pain, suffering and shocks as well as loss of earnings due to pregnancy and the expenses of the child but if this occurred as a result of the rape. In the present situation, the third respondent will have to evolve such scheme as to wipe out the fears of such unfortunate victims…..‖ In Bodhisattwa Gautam‘s case30, The Supreme Court again reiterated the above decision and further laid down that courts had arrived to award interim compensation which should also be provided for in the scheme. An examination of acid attack cases again underlines the urgent need for a scheme of compensation for the victims. Acid attack victims often have to, as stated earlier, undergo multiple surgeries costing Lakhs of Rupees. They are also in urgent need of rehabilitation as they often need financial help to exist. They may not be able to seek employment. The National commission for Women has suggested a separate legislation to deal with the offence of acid attack and as part of the proposed legislation has suggested that the Central government should establish a National Acid Attack Victims Assistance Board which will provide assistance to the acid attack victims by way of ensuring medical treatment and other services such as psychological counselling. The board has also been given the task to recommend to the Government strategies to regulate and control inter-alia the production and sale of acids. It has been suggested that the board administers a fund to be called The National Acid Attack Victims Assistance Fund to which the Central and State government can give grants apart from others. It has been provided that the board can give interim financial relief upto Rs. 1 Lakh within a period of 30 days directly to the hospital. Apart from other issues the main problem with the suggestions of the N.C.W is that it is restricting the function of the board to only acid attack cases. The Commission has also examined the Canadian legislation for payment of compensation under the ―Compensation for Victims of Crime Act‖. This act applies to compensation claims arising 29 30
Delhi Domestic Working Women‘s Forum Vs. Union of India (1995) I SCC 14 Bodhisattwa Gautam Vs. Shubhra Chakraborty AIR 1996 SCC 922
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from an injury or death resulting from certain offences. Thus, the act provides for compensation inter-alia to victims of offences like sexual assault, aggravated sexual assault, murder, manslaughter, sexual exploitation, assault, kidnapping etc. The act sets up a Criminal Injuries Compensation Board, which can pay compensation to the victim or a person who is responsible for maintenance of the victim or where death has occurred, the dependants or any of them of the victim or the person who was responsible for the victim‘s maintenance. The compensation can be awarded under the following heads: a) Expenses actually and reasonably incurred or to be incurred as a result of the victims injury or death; b) Pecuniary loss or damages incurred by the victim as a result of total or partial disability affecting the victim‘s capacity for work; c) Pecuniary loss or damages incurred by the dependants as a result of the victim‘s death; d) Pain and suffering; e) Maintenance of a child born as a result of sexual assault; f) Other pecuniary loss or damages resulting from the victims injury and any expense that in the opinion of the board it is reasonable to incur. Interim payments to the applicant preceding the award can also be made. The total compensation ordered to be paid cannot exceed $100,000 in lump sum payments for one occurrence. The payment of the compensation has to be paid out of the consolidated fund. COMPENSATION OF EMPLOYEES Compensation of employees (CE) is a statistical term used in national accounts, balance of payments statistics and sometimes in corporate accounts as well. It refers basically to the total gross (pre-tax) wages paid by employers to employees for work done in an accounting period, such as a quarter or a year. However, in reality, the aggregate includes more than just gross wages, at least in national accounts and balance of payments statistics. The reason is that in these accounts, CE is defined as "the total remuneration, in cash or in kind, payable by an enterprise to an employee in return for work done by the latter during the accounting period". It represents effectively a total labour cost to an employer, paid from the gross revenues or the capital of an enterprise. Compensation of employees is accounted for on an accrual basis; i.e., it is measured by the value of the remuneration in cash or in kind which an employee becomes entitled to receive from an 24
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employer in respect of work done, during the relevant accounting period - whether paid in advance, simultaneously, or in arrears of the work itself. This contrasts with other inputs to production, which are to be valued at the point when they are actually used. For statistical purposes, the relationship of employer to employee exists, when there is an agreement, formal or informal, between an enterprise and a person, normally entered into voluntarily by both parties, whereby the person works for the enterprise, in return for remuneration in cash or in kind. The remuneration is normally based on either the time spent at work, or some other objective indicator of the amount of work done. For social accounting purposes, CE is considered as a component of the value of net output or value added (as factor income). The aim is not to measure income actually received by workers, but thevalue which labour contributes to net output along with other factors of production. The underlying idea is that the value of net output equals the factor incomes that it generates. For this reason, some types of remuneration received by employees are either included or excluded, because they are regarded as either related or unrelated to production or to the value of new output. In different countries, what is actually included and excluded in CE may differ somewhat. The reason is that the way in which workers are compensated for their labour may be somewhat different in different types of economies. For example, in some countries workers get substantial payments "in kind", in others they don't. Systems of social insurance also differ between countries, and some countries have little social insurance. One has to keep this in mind when comparing CE magnitudes for different countries. A compensation system has to be aligned to the mission, vision, business strategy and organizational structure of a company to design the compensation plan in an efficient way to can achieve the goals. A general compensation plan consists of three components: a base compensation, rewarding incentives, and indirect compensation in form of benefits. Criticism The main criticisms made of the accounting concept of CE are that it can make workers' incomes look larger than they truly are, and that the main components of CE are not separately itemised in the accounts. What CE really contains is not made explicit. Often economists confuse CE with the total wage bill of a country, which is false. They might use CE to strike a quick "wages-profits ratio" or calculate unit labor costs, without realizing what they are really doing. CE is not equal to gross wages, or real disposable income of workers, nor strictly speaking - total labour costs.
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When national accounts were originally designed, social insurance contributions were not so large, but as they have become large since that time, it is argued they ought to be separately itemized. At the very least, it is argued, a distinction must be drawn in the accounts between income actually received by workers, and deferred income (such as social insurance payments), and all imputations should be made explicit. In some countries, this is in fact done to some extent in national accounts, but in others, it isn't. One reason for that is that it may actually be very difficult to estimate accurately all the different types of remuneration workers receive. UNSNA does provide for accounts of social spending by governments, but it is much more difficult to identify what different groups of transistors contribute and receive from governments. A subsidiary criticism is, that the accounting concept of CE is biased towards employers - it makes it look like as though employees do not have all sorts of costs of their own with respect to their work, whereas in reality they do. For example, research showed the costs associated with turning up for work each day reduce the average annual wage among British workers by £2,300; the official average salary falls from £22,248 to £19,970 when the typical costs associated with having a job - such as transport, snacks and clothes - have been deducted. A poll by YouGov, sponsored by debit card group Maestro, showed workers typically spent £120 extra a month on food, £50 on travel and £35 on work clothes. The research found that the average worker spent 16 days a year getting ready for and travelling to work.31 Also, if governments pay subsidies to producing enterprises, these are in UNSNA deducted from indirect taxes they pay, but no similar accounting theory is applied to workers in the valuation of net output. The reply to that, is that the aim is to cover the true total labour costs to employing enterprises, which represent the contribution by labour hired to net output or GDP. However, this is not strictly true, since employees may themselves be legally required to pay social insurance and tax contributions, and these contributions are nevertheless included in CE. In the product account, self-employed income is either allocated to CE, intermediate consumption or to operating surplus, but not separately itemized, although in some countries national accounts will separately itemise this item. More often, self-employed income is itemised in the income & outlay accounts. In Marxian economics, additional criticisms are made, namely that
31
The Guardian, 28 November 2005
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the CE aggregate does not separately itemise the earnings of higher corporate officers and managers, and it does not distinguish between different categories of employees. income by higher managers and executives in the form of profit-sharing or stock options should be included in gross profit. no adequate distinction is made in the production account between paid productive and unproductive labour according to economic function; at best, earnings in different outputdefined economic sectors are distinguished. the CE concept contains class biases rather than making the incomes of different social classes explicit. Labour is viewed as only one factor of production, rather than as the agent which creates, transfers and conserves all economic value.
The effect, Marxian economists argue, is that the way incomes are really shared out in society is hidden rather than made explicit, and this problem is not overcome in supplementary income & outlay accounts. Very substantial reaggregation is required to obtain better measures of laborremuneration in the real world. Thus, the overall effect is that the real rate of exploitation of labour is also obscured. In Feminist theory, the omission of the value of housework and women's unpaid voluntary labour in the accounts is also criticized. Time use surveys reveal that paid labour is in reality dependent on a lot of unpaid voluntary labour, without which market economies could not function at all.
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U.P. State Law Commission | Animesh Kumar/Amity Law School, Lucknow
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COMPENSATION & RESTITUTION TO THE VICTIMS OF CRIME Social justice, being goal of law in action, has also been found under Indian Constitution like a golden thread. But justice itself is truth in action. Ignorance is the enemy of this truth. Victims of crime being component of criminal justice administration are entitled to share the promises of social justice contained out constitution. Novel concept of victimology is a step towards fulfilling the avowed promises made by our constitution makers. The corpus juris of India is bereft of statutory awareness of victimology of social justice, equitable and effective reparation of victims through compensation becomes imperative. So far the present law seemingly inadequate and fragmentary in nature, justice seems a distant possibility. The answer could lie in attributing a more active role to the State. It has been suggested that State compensation scheme be introduce, but such be confined to violent crimes only. The nation of compensation is a sound concept and a society that recognizes the responsibility it over to its members is an incentive for law enforcement. But for doing such the very basis and need for compensation has to be considered – is it a right? Or is it to be awarded in extreme need? Should courts prescribe a maximum or minimum award? Should specialized bodies conduct the proceeding? But in compensation settlement the community should not be the end sufferer. Retribution should be within limits, and for such the victim-offender relationship can be studied to bridge the gap between the two. However the offender should not be the one to gain. Tangible community assistance could dilute. The victim compensation scheme in India is inefficient and inadequate understanding of different victim compensation scheme of various countries can help in understanding the issues but they are not exactly viable in our own criminal justice mean. Under the Indian Criminal Justice system, offence is regarded as against the state. So the victim has to initiate separate suit to recover damages for the wrong that has been committed against him or her. Section 357 of Criminal Procedure Code 1973, though an important provision is applicable only when the accused is convicted and sentenced. Isn‘t this a barrier to recover compensation? In our below the poverty line economy with majority of criminals from such a background, compensation recovery is but an unequal provision that benefits those with financial means and seems unrealistic in our majority poor society with little material benefits. Injury as to financial status seems to be a good alternative, but the victim can turn out to be the looser. The whole problem ingrained in our Compensation Law is the inability to meet the essence of it in light of our socioeconomic environment. Compensation means funds and mobilization of such and earmarking avenues for payment is a major need. Victim compensation is a new horizon is settling claims for losses incurred and quenching the thirst for retribution, the reformative basis of such a punishment is debatable, but what cannot be questioned is the novelty of this. 28
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There are crimes that cannot be measured or made up in terms of monetary compensation especially in cases of rape that affects the victim psychologically as much as physically. These cannot be weighed to be sufficiently avenged but to consider such means one can never draw the line. In case of rape, the trauma which the victim of the crime undergoes in our society or the stigma which a women feels after being victimized of rape is ineffable but the practical problems which comes of for as aftermath of rape is loneliness and desertion by husband and family. Consequently a woman is left to starve, just due to being victimized and now she is left in such a condition where there may be chances of repeated several abuse. It is true that money cannot repair the chastity and purity which is most precious asset of Indian women, nevertheless if sufficient compensation is granted to her, she would not have to depend on the mercy of any body. When sovereign functions are purportedly done by bosses and minions of government and the citizens are dignified, sovereign immunity is often invoked. When a soldier shoots at a citizen without any justification or a police officer tortures an innocent citizen in his custody, no democracy which honours human rights can vaccinate the Republic against liability for criminal or wrongful conduct. Such immunization negates the rule of law and discriminates unjustly in favour of the sovereign. Therefore, when the court moulds the relief by granting ‗compensation‘ in proceedings under Article 32 or 226 of the Constitution seeking enforcement or protection of fundamental rights, it does so under the public law by way of penalizing the wrongdoer and fixing the liability for the public wrong on the State which has failed in its public duty to protect the fundamental rights of the citizen. The payment of compensation in such case is not to be understood as it is generally understood in a civil action for damages under the private law but in the broader sense of providing relief by an order of making ‗monetary amends‘ under the public law for the wrong done due to breach of public duty of not protecting the fundamental rights of the citizen. The compensation is in the nature of ‗exemplary damages‘ awarded against the wrongdoer for the breach of its public law duty and is independent of the rights available to the aggrieved party to claim compensation under the private law in an action based on tort. Through a suit instituted in a court of competent jurisdiction or/ and prosecute the offender under the penal law‖. The Code of Criminal Procedure can be amended to make statutory provision for participation of the victim during the stage of investigation and trial of the criminal case instituted on the basis of police report. By way of amendment of Cr.P.C. right can be conferred on the victim to engage lawyer of his choice, whose opinion will prevail over the opinion of the public prosecutor in case of conflict and also to prefer appeal against the order of acquittal of the accused in the cases instituted on a basis of police report. Owing to ignorance of law or lack of sensitivity, many police officers at the police station level do not inform the victim of the action taken by police relating to the commission of the offence 29
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reported to the police station as per provisions of S. 173 (2) (i) of the Code of Criminal Procedure 1973. Nor is there any statutory provision to inform the victim of the progress of the case during trial by the prosecution. The police should ensure the victim about the action taken by the police station. It is pertinent to point out the innovative method of giving information to the victim introduced by the Apex Court before accepting the final report submitted by the police before the Court. The Supreme Court has directed the judicial magistrate to give an opportunity to the victim (informant) to be acquainted with the result of the police investigation and also to raise objection, if any, before discharging the accused on the basis of final report submitted by police u/S. 173 of Cr.P.C. The police and prosecution may also follow such procedure to Inform the victim of the progress of the case during investigation and trial respectively. Interrogation of the victims in general and the victims of sexual offences in particular should be done by the police in a dignified manner and by following the procedure of law i.e. without calling the female victims and male victims below the age of 15 years to the police station for the purpose of any interrogation as laid down in S. 160(1) of Cr. P. C. The Government should provide sufficient fund to the police and Court administration for payment of travelling allowance, pocket allowance and professional loss to the victims appearing as witnesses whenever they will be called to the police station or Court. The Magistrates and Judges should be trained on the art of Court management and controlling lengthy cross examination by way of rejecting irrelevant Questions. The Victims of body offences and the victims of accidents need immediate medical assistance. In a public interest litigation the question arose whether every member of the medical profession has the obligation to extend his services with due expertise for protecting life. In this case, the Doctor avoided his duty to help an injured scooterist on the plea that it was a medico-legal case and ultimately the injured succumbed to the injuries before getting medical assistance in another hospital. On consent of all concerned in the case, the Supreme Court has laid down that whenever a man of medical profession to render all help which he could do and if the case needs better assistance he must make all efforts ensure that the injured reaches the proper expert as early as possible. The practice of certain Government institutions and private practitioners to refuse even the primary medical aid to the patient and referring them to other hospitals, because it is a MedicoLegal case, is violative of Code of Medical Council Act, 1956. The member of the medical profession must be persuaded and motivated to follow the law of the land laid down by the Apex Court. The women police officers may take up the work of interrogation of victims of sexual offences in general and rape In particular. Where women police officers are not available, the victims of rape may be interrogated in their residence in the presence of friends and relatives. Similarly, the medical examination of the victims of rape should be done in an atmosphere where the victim is 30
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made to relax and to actively participate and cooperate during medical examination of the intimate parts of body. The female judges may preside over the Courts constituted for the purpose of trial of sexual offences. Lady public prosecutors may also be engaged to conduct the trial of rape cases. The provision for in-camera trial must invariably be adopted by the Presiding Officers of the Courts where sexual offences are tried. The special Court for the purpose may be constituted by the Government for protection of privacy of the victims of sexual offences. The sad plight of a ravished girl and child born as a result of the offence of rape is far too wellknown in our conservative, male-dominated and double standard society. For no fault of their own both the mother and the child become social outcastes. Their agony beggars‘ description and the shame and they suffer for the rest of their lives is so intense and painful that their case deserves special consideration compared to the case of any other victim of crime. The Criminal Procedure code particularly S.357 be amended suitably so that Courts may award compensation in any offence to victims to be paid by the offender or offenders. There should be no fixed limit of compensation as in S.358, Cr.P.C. It should be left to the discretion of the Court considering circumstances of each case and capacity of the parties. Where the offenders could not be identified provision for ‗State Compensation in deserving cases be provided through National as well as State Human Right Commission. Every Court be authorized to pay compensation to victims of crime out of fines collected by the respective Court in cases victim claims compensation. The existing provisions in Criminal Procedure Code concerning the compensation to victim and conferring discretionary power on the Court should be converted to mandatory provisions, requiring paying compensation in all suitable cases. A comprehensive scheme for payment of compensation by offender, as well as by State, based on sound and certain legal premise should be evolved. The compensation to the victims of crime should be State responsibility and for implementing this welfare measure an appropriate body should be set up. A victim of an offence should be legally allowed to intervene in the criminal proceedings against the offender to claim compensation for loss or injury. Judicial Administrative Mechanism should be established and strengthened where necessary to enable victims to obtain redress through formal or informal procedures that are expeditious, fair, inexpensive and accessible. Victims should be informed of their rights in seeking redress through such mechanisms. 31
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Separate Administrative Tribunals or Boards to be designated as ―Crime Compensation Tribunal Board‖ and set up at every divisional headquarter under the chairmanship of a Judicial Officer of the rank of a District and Sessions Judge with a doctor and a Social worker of standing two other members. Of these three, one shall be a woman Assessing Legislative Frame Work and Role of Indian Courts Criminal Law has always discouraged the acts or omissions which in general can affect right in rem and violators have always been punished with strict sanctions but the crime rate is not falling and State is in regular quest to preserve social solidarity and peace in society. The initial focus of criminologists were only on the aspect of punishment but the focus started shifting when they encountered with the fact that the person who is victim of crime is getting nothing out of the whole process of criminal justice system or is getting a so called satisfaction by seeing the offender punished. Therefore jurists, penologist etc in all countries started giving their full attention to the cause of victim in form of compensation and hence the whole debate started about ways, means and extent of compensation. This paper is an addition to the same as it tries to look in to the position of compensation to victim of crime in Indian Legal frame Work.
Meaning of Victim of Crime and Compensation to Victim of Crime: Indian legislature has not bothered to define "Victim of Crime" under any law and probably the Indian Judiciary is also on the same footing. The etymological meaning of phrase suggests that it would mean or will encompass: Anyone suffering physical, emotional or financial harm as a direct result of a Crime. Spouses and children of the person who has suffered. Parents, foster parents, siblings, guardians or other custodians of minor victims, mentally or physically incapacitated victims, or victims of homicide. In this regard reliance can be placed upon United Nations General Assembly Declaration of Basic Principles of Justice for Victim and Abuse of Power adopted in November 1985, which through Article 1&2 gives exhaustive definition of the phrase: Article1. "Victims" means persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are in violation of criminal laws operative within Member States, including those laws proscribing criminal abuse of power.
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Article2. A person may be considered a victim, under this Declaration, regardless of whether the perpetrator is identified, apprehended, prosecuted or convicted and regardless of the familial relationship between the perpetrator and the victim. The term "victim" also includes, where appropriate, the immediate family or defendants of the direct victim and persons who have suffered harm in intervening to assist victims in distress or to prevent victimization. Therefore the combine effect of these Articles probably encompasses everything under the sun that ought to have been the part of definition of the phrase. The word compensation in literal sense men's a thing that compensates or is given to compensate (for); a counterbalancing feature or factor; amends, recompense; spec. money given to compensate loss or injury, or for requisitioned property. When we talk about Compensation to the victims it means something given in recompense i.e. equivalent rendered. It is to be noted that the whole purpose of compensation is to make good the loss sustain by the victim or legal representative of the deceased. Generally when we talk about compensation in the present context it only limits itself to monetary compensation which is calculated on the basis of two head i.e. pecuniary loss and non-pecuniary loss. Evolution of Concept of Compensation to Victim of Crime: The evolution of the concept can be traced both historically and theoretically. Historically the concept of victimology in crude sense was not only part of Hammurabi's code but also existed in developed sense in ancient Greek city-states. The concept of compensation was also not new to India and existed in more developed sense then the present. Manu in Chapter VIII, verse 287 clearly says that: If limb is injured, a wound is caused or blood flows, the assailant shall be made to pay the expense of the cure or the whole. He further in verse 288 says that: He who damages the goods of another, be it intentionally or unintentionally, shall give to the owner a kind of fine equal to damage. The quotes regarding the same can be found even in the works of Brihaspati. This is in brief the law relating to compensation to the victim of crime that even existed in ancient civilization of east as well as west. As far as tracing of gradual evolution of the concept is concern the whole era till mid of 1900 can be generally divided in to three parts. In initial year of human civilization when the human started living together especially after stone Age, because of absence of rule of law and authoritative political institution, right to punish or rather might to punish (in from of eye for eye or money) was with the individual and hence in crude sense the concept of compensation existed at that time even but line of caution that need to be bear in mind is the fact that in primitive society criminal victim relationship was based on brutal mentality of attack being the best defense. Then came the era in which the social control in terms of mechanical 33
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solidarity creped in the society and the offence against an individual lost its individualistic character and now the offence was considered to be against the tribe or clan to which individual belongs and from this era, due to advent of concept of collective responsibility clan or tribe started replacing the victim's right. The third stage started with the advent of strong monarch after medieval period. In this stage on one hand criminal law saw far reaching change in all its discipline but on other the hand position of victim right to compensation remained unheard due to advent of more strong institution named state and crystallization of a notion that King/ State is parent of his subjects and Crime is breach of peace of King or State. So it was King/State who had the right to punish and get monetary compensation. This position remained as it is even with advent of democracy and the cause of victim remained unnoticed until 1950 and after that a movement stared in U.S. and European countries and the concept again got prominence. Theoretically radical criminologist championed the idea of cause of victim, which was result of reaction against the then criminological thinking that was only concern with criminals and not the victims. Indian Legal Frame Work: The Indian position regarding compensation to victim of crime can be studied under two heads or rather must be studied under two head in order to get complete picture. (i). Legislative Frame Work: The legislative framework in Indian regarding compensation to victim of crime can be trace through two major legislations i.e. Code of Criminal Procedure, 1973 and Probations of Offenders Act and Constitution of India. Under the provisions of code of criminal Procedure the power to award compensation is vested under section 357. The plain reading of the section shows that sub-section (1) and (3) vests power on the trail court to award compensation and sub-section (4) gives power even to appellant or revision court to order for compensation. Sub section (1) empowers the courts to appropriate the whole or any portion of fine recovered for the purpose mentioned in the clauses to the sub section, under which Clause (b) is most important and of our use . It demands that claim of compensation must be accompanied by following conditions: 1. Loss or injury suffered, 2. Loss or injury must be caused by the offence, 3. Such person can recover the compensation in a civil court Sub section (3) empowers the court, in its discretion, to order the accuse to pay compensation even though fine does not form part of compensation and hence although inserted in 1973 added new positive dimension to Indian philosophy of compensation. Probation of Offenders Act vide its section 5 empowers the trail court to order for compensation. The plain reading of this section clearly shows that the power in case of this Act vests only with the trail court and non-else. The whole discussion about legislative framework is incomplete 34
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until Section 431 and 421 of Cr.P.C. is read with above two substantive sections. Section 421 provides for means to recover the fine by attachment and sale of movable property of the offender and also from both movable and immovable as arrears of land revenue. Section 431 empowers the courts to recover any money (other than fine) payable by virtue of any order made under as if it were fine if method for its recovery is not expressly provided. As far as the Constitutional scheme is concern it is to be noted that it is outcome of various decision of Supreme Court of India either by reading Part third rights (in some cases part four as well) with Article 32, 136 and 142 of Constitution of India, which is to be given either by the state or accuse. Hence the whole gamete of legislative framework about compensation can be summarized in following way: Compensation from State, which is outcome of Judicial Imposition or some times, even ex-gratia under Constitution of India. Compensation from an offender which is out come either as a part of fine or allocation of specific sum to victim either under Cr.P.C. or Constitution of India. Judicial Response: Their exist plethora of cases where the compensation has been awarded by the Supreme Court to the victims of the crime which not only present the heart full moments but also exposed the sorry state of affairs that has been prevalent in the lower courts even some times High Courts. It is better to examine cases under two heads i.e. (i) under Cr.P.C. and P.O.A. and (ii) under Indian Constitution in order to appreciate the judicial standpoint on this issue. (a) Under Cr.P.C. or P.O.A.: The first case in the line, which attracted the mind of the court came way back in 1952 where the Hon'ble connected general principle of sentencing i.e. while passing a sentence the court must bear in mind the proportionality between offence and penalty with granting of compensation and observed that while imposing the fine court must consider gravity of offence and the pecuniary condition of the offender. Then came the case of Prabhu Prasad Sha v State of Bihar32 where the Hon'ble not only uphold the conviction of 15 years old boy (actually at the time of commission of crime the accuse was of 15 Years) but also observed that although requirements of social justice demands the imposition of heavy fine but taking in to consideration the condition of the accuse awarded fine of Rs 3000 to be paid by him to the children of the deceased. In another case of Palaniappa Gounder v Sate of Tamil Nadu33 Supreme Court following the same view as of earlier not only reduced the amount of fine imposed by the High Court from Rs 20,000 to Rs 3,000 but also observed that :
32 33
AIR 1977 SC 704 1977 AIR 1323
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“It appears to us that the High Court first considered what compensation ought to be awarded to the heirs of the deceased and then imposed by way of fine an amount which was higher than the compensation because the compensation has to come out of the amount of fine. Apart from the fact that even the compensation was not fixed on any reliable data, the High Court, with respect, put the cart before the horse in leaving the propriety of fine to depend upon the amount of compensation. The first concern of the Court, after recording an order of conviction, ought to be a determine the proper sentence to pass. The sentence must be proportionate to the nature of the offence and the sentence, including the sentence of fine, must be unduly excessive.” Next in the is the land mark case of Sarwan Sing v State of Punjab34 where supreme court not only retreated it's previous stand point but also laid down, in exhaustive manner, that what all should be taken in to account while imposing fine or compensation. The Hon'ble Court Observed that: “The object of the section therefore, is to provide compensation payable to the persons who are entitled to recover damage from the person sentenced even though fine does not form part of the sentence. Though Section 545 enabled the court only to pay compensation out of the fine that would be imposed under the law, by Section 357(3) when a Court imposes a sentence, of which find does not form a part, the Court may direct the accused to pay compensation. In awarding compensation it is necessary for the court to decide whether the case is a fit one in which compensation has to be awarded. If it is found that compensation should be paid, then the capacity of the accused to pay compensation has to be determined. In directing compensation, the object is to collect the fine and pay it to the person who has suffered the loss. The purpose will not be served if the accused is not able to pay the fine or compensation for, imposing a default sentence for non-payment of fine would not achieve the object. If the accused is in position to pay the compensation to the injured or his dependents to which they are entitled to, there could be no reason for the court not directing such compensation. When a person, who caused injury due to negligence or is made vicariously liable is bound to pay compensation it is only appropriate to direct payment by the accused that is guilty of causing an injury with the necessary mens rea to pay compensation for the person who has suffered injury. And also : It is the duty of the court to take into account the nature of the crime, the injury suffered, the justness of the claim for compensation, the capacity of the accused to pay and other relevant circumstances in fixing the amount of fine or compensation. After consideration of all the facts of the case, we feel that in addition to the sentence of 5 years' rigorous imprisonment, a fine of Rs. 3500 on each of the accused under Section 304(1), I.P.C. should be imposed.”
34
1957 AIR 637
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The next important case is of Bhupindar Singh v State of M.P.35 which was out come of quarrel between college students where the Hon'ble Court although allowed the compounding of offence but did not forget the cause of victim and granted the compensation of Rs 3000. The Case of Harikishan and State of Haryana v Sukhbir Singh and others36 is the second most important case after Sarwan Singh where court repeated its firm understanding once again in following words: The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon the acts of each accused. Reasonable period for payment of compensation, if necessary by installments, may also be given. The court may enforce the order by imposing sentence in default. In the case of Balraj Singh v State of U.P.37 stated the same point as discussed above but in most appropriate word by saying that the power to a award compensation is not ancillary to the other sentence but in addition thereto. Under Indian Constitution the principle of payment of compensation to the victim of crime was evolved by Hon'ble S.C. on the ground that it is duty of the welfare state to protect the fundamental rights of the citizens not only against the actions of its agencies but is also responsible for hardships on the victims on the grounds of humanitarianism and obligation of social welfare, duty to protect it's subject, equitable Justice etc. It is to be noted that compensation by the State for the action of it's official was evolved by the Hon'ble Court against the doctrine of English law: "King can do no Wrong" and clearly stated in the case of Nilabati Behra v State of Orissa 38 that doctrine of sovereign immunity is only applicable in the case of tortuous act of government servant and not where there is violation of fundamental rights and hence in a way stated that in criminal matters (of course if there is violation of fundamental rights) this doctrine is not applicable. Rudal Sah v State of Bihar39 is the most celebrated case where the Hon'ble S.C. directed the state to pay compensation of Rs 35,000 to Rudal Sah who was kept in jail for 14 years even after his acquittal on the ground of insanity and held that it is violation of Article 21 done by the State
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I (2005) DMC 831 1988 AIR 2127 37 2002 (3) AWC 2333 38 581 1993 SCC (2) 39 1983 SCR (3) 508 36
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of Bihar. The case of Bhim Singh v State of J&K40 is another important case where Bhim Singh an MLA was arrested by the police only to prevent him to attended the Legislative Assembly, the Hon'ble Court not only entertained the writ petition of his wife but also awarded the compensation of Rs 50,000 to be paid by the state. The case of Meja Singh v SHO Police Station Zira41 is another unfortunate case where this time High Court of P&H took the cause of victim and awarded the compensation of Rs 25,000 for illegal detention of son of the petitioner. This time it was High Court Bombay, which took the cause of the victim in the case of Ravikant Patil v DG Police, State of Maharastra42 where the petitioner was taken handcuffed to court in clear violation of Judgment of Hon'ble S.C., that is law, as decided in the case of Prem Shanker Shukla v Delhi Administration.43 Custodial Death is another burning issue where the courts have awarded compensation to the victims of crime and the most important case under this heading is of Mrs. Cardino v UOI44 where although the accuse was arrested on the charge of misappropriation of some plastic ware and hospital; utensils worth Rs1500 but tortured like hard core criminal and hence he succumbed to the torture. Here when the matter was brought before the Hon'ble High Court of Bombay which gave the compensation of Rs 2,00,000 to be paid by the state. In the case of Nilabati Behra v State of Orissa45 where the son of petitioner was arrested by the police and next morning his body was found lying down with several injuries on the railway track, the Hon'ble S.C. awarded the compensation of Rs 1,50,000 that is to be paid by the State. On the issue of brutal use of force and misuse of authority by the police out side the police station case of SAHELI v Commissioner of Police46 is land mark where the son of Kamlesh Kumari died due to ill treatment by a S.I. of Delhi Police, the Hon'ble S.C. directed the Delhi Adm. to pay the compensation of Rs 75,000. The next important case is of Gudalure Cherian v UOI47 where Hon'ble S.C. following an innovative approach first directed the whole matter to be investigated by the CBI afresh and completion of investigation directed the Govt. of U.P. to first suspend the police officials and medical officers who tried to save the accuse but also directed the state to pay compensation of Rs 2,50,000 to the victim of rape and Rs 1,00,000 to victim of other crime. The next in the line is the case of Bodhi Satta Gautam v Subhra Chakraborty48 where the Hon'ble S.C. invented the concept of interim compensation and enforced the part third right against an individual by saying that: This decision recognizes the right of the victim for compensation by providing that it shall be awarded by the Court on conviction of the offender subject to the finalization of Scheme by the Central Government. If the Court trying an offence of rape has jurisdiction to award the 40
1984 Supp (1) SCC 504 1991 ACJ 439 42 1990 (2) BomCR 242 43 1980 AIR 1535 44 www.legalserviceindia.com/articles/pun.htm 45 supra 46 1990 AIR 513 47 1992 (1) Crimes 2 SC 48 1992 (1) Crimes 2 SC 41
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compensation at the final stage, there is no reason to deny to the Court the right to award interim compensation, which should also be provided in the Scheme. On the basis of principles set out in the aforesaid decision in Delhi Domestic Working Women's Forum, the jurisdiction to pay interim compensation shall be treated to be part of the overall jurisdiction of the Courts trying the offences of rape which, as pointed out above is an offence against basic human rights as also the Fundamental Right of Personal Liberty and Life. The court also stated that: “Having regard to the facts and circumstances of the present case in which there is a serious allegation that Bodhisaltwa Gautam had married Subhra Chakraborty before the God he worshipped by putting Vermilion on her forehead and accepting her as his wife and also having impregnated her twice resulting in abortion on both the occasions, we, on being prima facie satisfied, dispose of this matter by providing that Bodhisattwa Gautam shall pay in Subhra Chakraborty a sum of Rs. 1,000/-every month as interim compensation during the pendency of Criminal Case……… in the Court of Judicial Magistrate, Ist Class, Kohima, Nagaland. He shall also be liable to pay arrears of compensation at the same rate from the date on which the complaint was filed, till this date.” Therefore it can be observed that the Hon'ble Courts have taken little softer view ( with regard to monetary aspect) when question of the award of compensation come under Cr.P.C. as compare to when it come under Constitution. Assessment of the Role of Legislative Frame work and Indian Courts: The exit no doubt that Code of Criminal Procedure provided for the compensation to victim in the year 1898, when even the concept has not developed properly but now it submitted that the whole scheme under Cr.P.C. or P.O.A. needs renovation. The most important attack on the present legislative frame work lies on the desertion given to the courts i.e. it depends upon them to grant compensation and absence of recording any reason when they abstain them self from grating compensation. Another criticism of the present legislative framework lies in the absence of right of victim to claim compensation. Critics also argue for the absence of any institutional scheme under the present legislative framework that has now become the important part of victim- Crime relationship in countries of southern hemisphere such as USA, UK, New Zealand, France etc . The laxity on the part of Indian legislature is so much so that India has not made any legislation to give compensation to victim of crime when accused is acquitted despite of its obligation under various International Covenants. In this regard even Hon'ble S.C. in the case of Delhi Domestic Working Forum v UOI49 has shown its concern in flowing words:
49
JT 1994 (7) 183
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“It is necessary, having regard to the Directive Principles contained under Article 38(1) of the Constitution of India to set up Criminal Injuries Compensation Board........Compensation for victims shall be awarded by the court on conviction of the offender and by the Criminal Injuries Compensation Board whether or not a conviction has taken place. The Board will take into account pain, suffering and shock as well as loss of earnings due to pregnancy and the expenses of child birth if this occurred as a result.” So this in brief set out the major defaults in the present legislative framework due to which the whole concept of compensation has become akin to flop show in India. However it is to be noted that part of responsibility of being the concept flop show lies on Indian judiciary as well, especial the lower courts. In this regard the observation of Hon'ble S.C. in the case of State of Gujarat v Hon'ble High Court of Gujarat50 is relevant where following was stated: “Section 357 of the Criminal Procedure Code, 1973 provides some reliefs to the victims as the court is empowered to direct payment of compensation to any person for any loss or injury caused by the offence. But in practice the said provision has not proved to be of much effectiveness. Many persons who are sentenced to long term imprisonment do not pay the compensation and instead they choose to continue in jail in default thereof. It is only when fine alone is the sentence that the convicts invariably choose to remit the fine. But those are cases in which the harm inflicted on the victims would have been far less serious. Thus the restorative and reparative theories are not translated into real benefits to the victims.” Case of Harikishan Singh is also of importance where the Hon'ble S.C. observed that: “It is an important provision but courts a have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the court to award compensation to victims while passing judgment of conviction. In addition to conviction, the court may order the accused to pay some amount by way of compensation to victim who has suffered by the action of accused. It may be noted that this power of courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive the victim crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all courts to exercise this power liberally so as to meet the ends of justice in a better way.” Moreover the comment High Court in case of In Re Drug Inspector is very important where it was stated that efficacy of a law and its social utility depends largely on the manner4 and the extent of its application by the courts . It was further stated that the good law badly administered may fail its social purpose and if overlooked in practice fail in the purpose and utility. The Law 50
http://www.indiankanoon.org/doc/199405/
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Commission of India in its 41st report clearly sated that our courts are not liberal in utilizing these provisions and went to the extent of saying that it is regrettable that our courts do not exercise their statutory powers under this section as freely and liberally as they could desire. However in this regard it is to be noted that the attempt of Hon'ble S.C. and some of the High Courts as discussed above clearly shows that they are championing the cause of victim even in the given set up but still looking to the problem as a whole, inherent weakness on the legislative framework as well as laxity on the part of court has made the proper functioning of whole concept a distant dream in strict sense.
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RECENT EXAMPLES Rape & Remedy51 VANDANA SHUKLA IN THE TRIBUNE CHANDIGARH The rhetoric on remedies of rape moves in circles – from capital punishment for rape to financial compensation to the victims to out of court ‗settlements‘ to getting the victim married with the culprit. The woman‘s need for dignity of course takes the back seat. Despite an uninterrupted discourse on the subject over the past several decades, governments and society are yet to evolve a cast-iron system to deal with the crime and the criminals. From the year (1971) the National Crime Record Bureau (NCRB) began collecting data on rape cases, it has shown an eight-fold increase. In 2008 over 21 thousand complaints were recorded in the country with various agencies conceding that over 80 per cent of the cases never get reported. Incest has shown a 30 per cent increase— these are disturbing social trends, which need to be researched and addressed. This stands in marked contrast to the other serious and violent crimes like murder, robbery, dacoity, kidnapping and rioting. The NCRB has also concluded that only one in 69 rape cases get reported and only 20 per cent of the reported cases result in convictions. Cash compensation? Compensation for rape is not a new idea. Courts have ordered for compensation to be paid under provisions contained in the statutes. Several state governments too have found it convenient to pay sums depending upon the extent of the public outrage and media exposure. But this is the first time the Ministry of Women and Child Welfare has launched a country-wide scheme and has offered to reimburse the state governments the cost they incur in its implementation. But compensation — calls it restorative justice or whatever —is tricky. It is instructive to recall the experience with Prevention of Atrocities Act 1989 (for SC and ST). Tribal and dalit victims of rape, were required to produce a certificate of their tribal/dalit status for receiving a compensation of Rs 25,000.
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http://www.tribuneindia.com/2011/20110918/edit.htm#1- Posted in CRIME AGAINST WOMEN, FUNDAMENTAL RIGHTS, GENDER, LIBERTY AND JUSTICE, SEXUAL OFFENCES, VICTIM COMPENSATION, VICTIMS, WOMEN EMPOWERMENT by NNLRJ INDIA on September 18, 2011
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Getting the certificate in itself became a profit making proposition for brokers. Poverty also induced many to file false cases, thus defeating the well-meaning provision, points out Pratiksha Baxi from JNU. The law also appears to assume unfortunately that standards of dignity are different for a woman from a well- off family and for a dalit woman. So, a dalit woman‘s compensation money for rape can be shared by the rapist under the Act. The compensation is paid if the victim belongs to either a Scheduled Caste or a Scheduled Tribe and the rapist does not. The law does not specify what happens if the woman is from a Scheduled Tribe and the man is from a Scheduled Caste or vice versa. Even before the Act was passed in 1989, since 1978 in UP women from SC and ST was paid compensation of Rs 5000 for rape. The website of the Department of Social Justice and Empowerment, Government of Gujarat, lays down that for outraging the modesty of a woman under section 3(1) (11) the Government pays a compensation of Rs 50,000, but in case the accused marries the rape victim, the ‗assistance‘ (here it is not termed as compensation) of Rs 50,000 is disbursed in the joint names of the couple. It does not require great imagination to understand how these laws end up as bait for attracting more abuse for women. The website does not offer any data on how many women actually received the compensation or assistance! Other obstacles Compensation, obviously, can be paid only after the charge is established in court, which is a tall order in itself. Strangely, the scheme is sought to be justified by the need to help the victim financially so that she can fight it out in court. How this contradiction gets resolved, remains to be seen. A study conducted by MARG in Uttar Pradesh throws up more questions. Of the 33 registered victims or their family members the researchers spoke to, they found 13 victims were minors, 2 were six years old, one was between four and five years of age. One was 12 years old, others less than 14 years of age. But in only four cases did the medical report confirm rape. Of the 13 minor victims, only one minor‘s rape was confirmed. Two girls had the noting ‗no opinion‘ and of the rest there was no medical record with the police. Yet, the compensation was ‗liberally‘ sanctioned.
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Although the police had no ‗medical examination report‘ in their record, compensation was still sanctioned in as many as 28 cases, including nine in which there was no finding of rape. In one case the rapist and victim belonged to the same caste, hence the case was withdrawn! The money, in case of minor victims, was received by the parents. Only two women spent Rs 2000 out of the received money to hire a lawyer. Of the 13 minors, only four could attend school while most victims relocated to escape the stigma attached to rape. Their humiliation was compounded by the CM of U P, Mayawati , who had ordered the money to be delivered by the Director General of Police in person. He was also asked to take a helicopter and fly to various places for the purpose. On the one hand rape cases are held in camera, on the other hand this display of ‗help‘ discourages victims to report rape. The compensation, as and when paid, is often grabbed by the rest of the family, and makes the police indifferent and even more reluctant to pursue the cases. The attitude is, since the money has already been paid, why fuss over prosecution ? Little research In most countries, policies and laws are framed based on research based findings. But there are very few studies on the subject funded by the Government. A few studies, mostly done by individuals who feel strongly about the issue, are however eye openers. Social activist Flavia Agnes‘ study was based on observations drawn from her own legal practice and judgements involving rape cases; while Pratiksha Baxi‘s ( Assistant Professor, Centre for Law and Governance, JNU, Delhi) study was based on what goes on inside the court rooms, where a 12- year- old is also asked sexually explicit questions a lawyer may hesitate putting to a 30- year-old. Laws inadequate Even after the much talked about Mathura case, which led to the amendment of Evidence Act in 1983, which allowed the woman‘s word to be trusted for her non-consent, there has been no monitoring of judgments. From 1860 to 2002, the colonial law based on the moral history of the woman was in application while looking at a rape victim, which meant that a woman‘s sexual history would have a say on the writing of the verdict. Despite deletion of this clause, not much has changed in courtrooms. A Google search for kanoon.com and rape cases will throw up several judgements, which are deeply patriarchal and explain why conviction rates are so abysmally low. 44
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Doctors are surprised if the victim cooperates with them on examination (a victim is supposed to go stone-silent, weep and should have injury marks), policemen‘s wives cannot complain of being raped by husbands ( because it is a husband‘s right) and while the defence tries to prove that the victim is a consenting adult because anyone over 16 is thought to have given consent, judges worry about marital prospects of victims ( many rapists thus get lighter sentences when they agree to marry their victims). Incest of course hardly ever gets reported because of the family‘s insistence on silence. Marry the rapist Sakshi, an NGO, had released a study called ‗Gender and Judges‘, in which it analysed the views of 119 judges from all over India, along with experiences of female lawyers, complainants and observations on court room trials. Most judges found it impossible to believe that men could perpetrate the crime without any element of consent or provocation. ‗Judges were of the view that penetration of a woman is physically impossible without her ‗consent‘ and that in any case women are ‗partially to blame for such abuse.‘ Another ludicrous idea often encouraged by the judiciary is that of compromise. Whenever witnesses turn hostile, victims are advised to accept a compromise, which the court witnesses, but is unable and unwilling to act upon. The court thus ‗restores‘ her chastity in the public eye. Fortunately, the courts are prohibited from compounding a rape case. Being a non-compoundable offence, compromise in rape cases has been confined to the bargains between community elders, victims‘ kin, local authorities and the police, with judges looking the other way for the most part. Power game Women are often subjugated by men in power. In the Ruchika Girhotra molestation case, the protector, an IG, Haryana Police, S P Rathore became the tormentor. After 19 years, 40 adjournments, and more than 400 hearings, the court finally pronounced him guilty under Section 354 and gave him six months imprisonment. In case of Anjana Mishra, it was the Advocate General of Orissa, Indrajit Roy, who attempted to rape her when she went to seek his help for getting custody of her children in 1998. Since she dared to report the case, she was gang-raped by three men, to teach her a ‗lesson.‘ Roy was given anticipatory bail but was never arrested due to his political clout. Under public pressure when he finally resigned, his junior was made AG, putting Anjana in her place.
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It is reminiscent of Bhanwri Devi‘s case, a Sathin volunteer in Rajasthan, when she tried to stop a child marriage in 1992, she was gang raped by five men, including Ramkaran Gujjar, whose daughter‘s marriage she had tried to stop. The male doctor at the primary health centre refused to conduct medical examination and at a Jaipur hospital the doctor certified only her age. Subjected to sustained humiliation, she was asked by the policemen to leave her lehenga as an evidence of rape. Bhanwri‘s case inspired Visakha case, which brought about legislation against sexual exploitation of women at work place but Bhanwri could not get justice in a caste -ridden system. Society must change first Nandita Das I enacted the role of a rape victim in three films; Bawandar, Pitah and Laal Salaam. So, I can claim to have some idea of what a woman goes through in a situation like gang- rape. While shooting the gang-rape scene for Bawandar, I saw some members of the crew nudging each other with suppressed and suggestive giggles, and I screamed. It was something I never do. But I felt violated. This was just an enactment, after all. I could immediately empathise with what an actual victim has to go through. It is sad the way we treat this kind of abuse of women—with total disregard for the feelings of a woman. The society has to change—this is not something outside us, they come from within us. We need to shame the perpetrators; we need to talk more and more—in the open about these issues because, as we know, a rapist gets caught usually after a number of successful or unsuccessful attempts. What makes the rapist so daring is the silence of the women. As far as monetary compensation is concerned, it finds justification in offering help to the victim to fight her case legally, which is often long-drawn. Otherwise it becomes like the flesh-trade. One must understand that the person is scarred for the rest of her life, simply because we have shrouded a crime under such weight of shame for so long that we do not want to deal with it. What’s wrong if state takes responsibility? Urvashi Butalia There was a time when, after the Bhawnri Devi case, women‘s groups demanded compensation, because Bhawnri was raped in the course of carrying out her duties as a government functionary, albeit an informal one (she was paid not as an employee but as a volunteer, something that enables the govt. to pay less than the minimum wage); therefore she was entitled to compensation. She was eventually given compensation but she did not use it, it created more problems for her— the community started saying rape was an excuse for taking money… so
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there is that element also. But if the state takes responsibility, then that can‘t be altogether a bad thing. Rape – Violence most foul52 Rape, a widespread crime against women, shows little signs of abating. The unbearable trauma that a rape victim has to bear is further compounded by the insensitive laws and the “couldn‟t care less” attitude of the law-enforcing machinery. Until rapists are dealt with severely, the offence will continue to breed and grow. Shree Venkatram in THE TRIBUNE Rape is one of the most heinous crimes, impacting the victim for life. Given its enormity, it should be considered next only to murder. Sadly, it has not been given the attention it needs by social scientists, law makers and justice dispensers. When two Class IX boys attempt to rape a Class I girl, as in a Bathinda school recently, it is time society introspected. What kind of signals are we sending out to our young? The National Crime Records Bureau had termed rape ―India‘s fastest growing crime‖. We have complete figures for 2009, when according to the NCRB, a total of 21,397 rape incidents were reported countrywide. Add to this, 25,741 cases of kidnapping and abduction of women and 38,711 cases of molestation, and you get 235 reported cases of molestation/rape/ abduction of women every day. These are just the reported cases. Most, especially molestation and rape cases, go unreported in the name of guarding ‗family honour‘. Convoluted sense of justice Let us examine some recent sentences proclaimed by our justice dispensers and the messages these have sent out to society. A few months ago the Supreme Court decided to let off three farmers, who had been convicted of gang raping a woman in Ludhiana district. A sessions court had awarded a 10-year imprisonment to them. The Punjab and Haryana High Court had upheld their conviction, following which, the criminals appealed to the Supreme Court. Their sentence was cut short after a few years under a ―compromise formula‖ that entailed paying Rs 50,000 each to the victim. The rapists had appealed to be let off as ―they and the victim were happily married to their spouses‖ and ―wanted to live peacefully‖. The fact that the victim is ―happily married‖ is no 52
http://www.tribuneindia.com/2011/20110902/edit.htm#6- Posted in COMPENSATION, VICTIMS by NNLRJ INDIA on September 3, 2011
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credit to the rapists. Did the judges ascertain the happiness quotient of the criminals‘ marriages? Did they speak to their wives? Men who rape, make for draconian and violent husbands. As far as ―wanting to live peacefully is concerned‖, it is easy to say that after committing a violent crime. The fact that they can indulge in rape makes them dangerous criminals. If they could do that to one woman, they can inflict themselves on another. How does the court ensure that this does not happen? The National Council for Women has asked for a review of the case for it sets a bad precedence of reaching a compromise in rape cases, where conviction rates are extremely low anyway. Wrong signals embolden rapists It is not surprising that such a judgement should come from our highest court. The former Chief Justice of India, K G Balakrishnan, is reported to have said that society and the state must respect the decision of a rape victim if she chooses to marry the rapist. His words as reported by a newspaper: ―Due regard must be given to their personal autonomy since in some cases victims may choose to marry the perpetrator.‖ Imagine the trauma of a woman having to spend her life with a man who has raped her? It is like inflicting a lifelong sentence of mental and physical cruelty on her, while the man goes scot free. And then, what would prevent the rapist from marrying the victim to escape punishment and then deserting her? This kind of a mindset furthers the warped view society holds that marriage is the be all and end all for a woman. And that it is better to marry a man who has raped you than not marry at all! Now look at the punishment a panchayat in Ghaziabad meted out to an rapist uncle: It ruled that five smacks with a shoe was enough punishment for raping his niece. In another case, also in Ghaziabad, a five-year-old was raped by her 19-year-old cousin. But the family chose to keep quiet, not even getting medical attention for the little girl. She was sent to school the next day where she complained of abdominal pain and died. It was only then that the parents approached the police. The girl‘s mother said she had raised an alarm when she saw the cousin raping the child. The family elders had caught him, slapped him and let him off. Consider now how these family elders and panchayats handle youngsters who marry outside their caste group or marry within their own gotra. The punishment has ranged from social ostracism to even death! Obviously, rape is considered a minor crime compared to violation of caste and kinship lines. Compounding victims’ trauma The law as it stands today is weak and archaic. Apart from woefully inadequate sentences, it only recognizes vaginal rape and does not believe that children below 12 can be raped. Women‘s groups have been demanding its amendment but though decades have passed, the bill is still in a draft stage. 48
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The Aruna Shanbaug case illustrates the complete worriedness of our justice system. While Aruna, the nurse who was raped and maimed for life has been lying in a hospital bed for the last 37 years, the rapist, ward boy Sohanlal Walmiki, is a free man today. He is said to have changed his name, moved to Delhi with his family where he works in a hospital. He was imprisoned for only seven years for attacking her and stealing her jewellery, but not for rape as it was anal and not vaginal rape he indulged in as Aruna was menstruating at that time. What kind of justice is this? The death penalty awarded to rapist and murderer Santosh Kumar Singh was commuted to a life sentence because of what is termed as ―mitigating circumstances‖. Among them were that he was ―young, just 24 years old‖ at the time of his crime. At 24 years, one is an adult! The fact that he was ―married‖ and ―the father of a girl child‖ were the other ―mitigating‖ factors. Now, how does this help either the wife or the daughter? They have to fend for themselves anyway and live with the knowledge of having a rapist and murderer as a husband and father for the rest of their lives. In fact, the law should give the wife and children of a rapist the choice to walk off from the relationship with no legal binding on their part, while retaining all their rights on the family property. If the wife has the option of being legally freed of the relationship, she can think of starting her life again. It is extremely traumatic for a young girl to grow up knowing her father is a rapist. In fact, such men are best kept away from their daughters. We have also had judgments where the sentence was commuted when the rapist passed a civil services exam. What is the message that went out? That if you pass the exam, all will be forgiven and you will occupy an important government post. In fact, the opposite should be the case. Convicted rapists who have served their term in jail should be debarred from holding a government job. Need for unorthodox methods The law must acknowledge that rape mars a person for life. The condition has been recognised as Rape Trauma Syndrome where the victim suffers from phobias and nightmares and feels emotionally crippled, unable to form meaningful relationships and friendships for life. Kamini Lau, Delhi‘s additional sessions judge, recently called for a public debate on ―chemical and surgical castration‖ of child rapists and serial offenders as an alternative punishment. She said this while delivering a sentence for a man who raped his minor step daughter for four years. Chemical castration is being used in parts of United States and many European countries, with the rapist‘s consent. Sweden, France and Germany are among them. In Poland it is mandatory. A province in Argentina is the latest to adopt it. It involves an injection of an anti-pregnancy drug every three months to lower libido and uncontrolled sexual impulses. There is much evidence in
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the medical and psychiatric world that a rapist cannot be cured unless there is a medical intervention. It is time to act. There can be no compromises with a rapist. Email panel constituted by Supreme Court at:
[email protected] 53 The directions of the Supreme Court of India on evolving proper schemes for sex workers across the country were highlighted in a report by our Legal Correspondent published in The Hindu of August 3, 2011. In its order of August 2, the Bench of Justices Markandey Katju and Gyan Sudha Misra commended the panel it had constituted, which is headed by senior counsel Pradip Ghosh, for going about the task assigned to it ―in right earnest.‖ Noting that it would take time to rehabilitate sex workers in India, the court observed that ―it is ultimately the people of the country, particularly the young people, who by their idealism and patriotism can solve the massive problems of sex workers.‖ The court particularly appealed to the youth of the country to ―offer their services in a manner which the panel may require so that the sex workers can be uplifted from their present degraded condition.‖ The Supreme Court asked people willing to help to contact the panel at the email id: panelonsexworkers@ gmail.com Rehabilitation of Women in Prostitution – a time for Action54 The Supreme Court has issued notice to all States and Union of India on the issue of Rehabilitation. This is the right time we thought seriously about rehabilitation of victims of human trafficking. We don’t need to think about ifs and buts- it is time for action. Ravi Kant , Advocate Supreme Court of India & President, Shakti Vahini Recently the Supreme Court had issued notice to all states while noting down the concern on the pathetic conditions of Sex Workers: “Although we have dismissed this Appeal, we strongly feel that the Central and the State Governments through Social Welfare Boards should prepare schemes for rehabilitation all over the country for physically and sexually abused women commonly known as prostitutes as we are of the view that the prostitutes also have a right to live with dignity under Article 21 of the Constitution of India since they are also human beings and their problems also need to be addressed. As already observed by us, a woman is compelled to indulge in prostitution not for 53
Posted in CONSTITUTION, FUNDAMENTAL RIGHTS, HUMAN RIGHTS, RIGHT TO LIFE, SEXUAL OFFENCES, VICTIM COMPENSATION, VICTIMS by NNLRJ INDIA on August 6, 2011 54 Posted in ACCESS TO JUSTICE, CRIME AGAINST WOMEN, CRIMINAL JUSTICE SYSTEM, FUNDAMENTAL RIGHTS, GENDER, HUMAN RIGHTS, JUDICIAL ACTIVISM, JUDICIARY, JUSTICE, RIGHT TO LIFE, SUPREME COURT, TRAFFICKING, VICTIM COMPENSATION, VICTIMS by NNLRJ INDIA on July 25, 2011
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pleasure but because of abject poverty. If such a woman is granted opportunity to avail some technical or vocational training, she would be able to earn her livelihood by such vocational training and skill instead of by selling her body. Hence, we direct the Central and the State Governments to prepare schemes for giving technical/vocational training to sex workers and sexually abused women in all cities in India. The schemes should mention in detail who will give the technical/vocational training and in what manner they can be rehabilitated and settled by offering them employment. For instance, if a technical training is for some craft like sewing garments, etc. then some arrangements should also be made for providing a market for such garments, otherwise they will remain unsold and unused, and consequently the women will not be able to feed her. We propose to have the response of the Centre and the States in this regard and hence the case shall be listed before us again on 04.05.2011 to be taken up as first case on which date the first compliance report indicating there in the first steps taken by the Central and the State Governments in this regard shall be submitted. Issue notice to the Central Government and all the State Governments which will also file responses by the date fixed for hearing.” The court was expressing anguish and concern about failure of the Union of India and the States to effectively implement the National Plan of Action 1998 to combat trafficking and Rehabilitation has caused irreparable damage to lakhs of victims who have been caught in this illegal trade. The applicants states that this Honorable Court in Gaurav Jain v. Union of India55 keeping in view of the legislative inertia and the consequent failure of the government directed that a high level committee be constituted to make an in-depth study of these problems and to evolve such guidelines to protect the rights and interest of victims of sexual exploitation. It also laid down certain guidelines and further directed that a high level committee be constituted to make an in depth study of these problems and to evolve such suitable schemes as are appropriate and consistent with the guidelines. The central government pursuant to the directions issued by this Honorable Court in Gaurav Jain case constituted a ―Committee on the Prostitution, Child Prostitutes & Plan of Action to combat trafficking and commercial and Sexual Exploitation of Women and Children‖. In 1998 a Report containing an Action Plan was prepared by the Department of Women and Child Government of India . Apart from the highlighting the problems faced in addressing issues of commercial sexual exploitation which are set out hereinafter detailed recommendations were made with a view to arrest the systematic problem , including issues relating to law enforcement and legal reforms. The above recommendations have not been implemented. In fact there has never been any serious attempt by Respondents to address the issues /recommendations made by the committee. Further the Action Plan does not have any budgetary or non budgetary support from the 55
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Government. The petitioner believes that there has been no study relating to the economic cost of implementing the recommendation and the sources through which such costs could be met. In the years from 2001- 2010 the Government of India has focused its initiatives on the issue to combat trafficking. It has formulated the Swadhar and Ujjwala initiatives which are primarily aimed at rehabilitation of trafficked victims. The Government of India in 2010 has formed special Anti Human Trafficking Units across the country under the Ministry of Home Affairs. Apart from the above mentioned initiatives the respondents have failed miserably to formulate special schemes for rehabilitation of women who are in prostitution and also failed to implement the guidelines which were formulated in the National Plan of Action 1998 for rehabilitation of women in the red light area. The Government of India , UNIFEM and National Human Rights Commission undertook a study on the issue of Human Trafficking and to propose recommendations to combat this crime. The NHRC report came out with a set of recommendations which have till date not been complied with. The failure to implement the measures set out in 1998 Plan of Action and also the recommendations of the NHRC report has caused severe injury and prejudice to the victims of prostitution. The legislative deficit, coupled by callousness displayed by the respondents continues to ruin the lives of lakhs of women who are caught up in the Illegal Sex Trade being openly run from the red light areas. The respondents have failed and neglected to accept responsibility and discharge their duty as mandated by law. Due to the callous attitude of the Union of India and the various state governments the trade in the red light area has been thriving. Combined with lax law enforcement and insufficient support structures the trafficking in Human Beings is on the increase. It is due to the problem of trafficking the victims are forcefully pushed into this illegal and viscous trade. The victims are mostly minors when they are brought and are sold to the organized crime thriving in the red light areas. From there these victims are tortured and forced into prostitution. The victims are kept in bonded conditions and are forced to live a life of bondage , sexual slavery , repeated and forced rape , deprivation of basic human rights and hidden away from law enforcement agencies. The victims after repeated human rights violation, continued torture and bodily harm are forced to do and act as their captors desire. These victims are then forced to cater to ten to fifteen men each day. These bonded conditions continue for at least seven to ten years or until the victim can be rescued. The seven to ten years of bonded and sexual slavery is serious violation of Article 23 (3) and Article 21 of the Constitution of India. During this period the victims is forced to suffer repeated rape ten to fifteen times and also during this process of forced and sexual slavery the victim also gets exposed to Sexually Transmitted diseases and HIV/AIDS. The economics of the illegal trade of human misery and also the exploitation has been vividly explained in the NHRC / UNIFEM The victim after immense suffering and years of exploitation and sexual slavery multiplied with lax law enforcement is left with no choice but to continue in the illegal trade. The victims cannot 52
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return to their homes for the fear of stigma and shame. They are left to their pathetic situations. Some of them are forced to continue in the trade and many with no choice left become part and parcel of the illegal trade. The Victims continue to suffer and with no rehabilitation or support from the government are left to beg and die in utter neglect. They don‘t even venture out as they will be further exploited. Thus the suffering and violation of basic human rights and fundamental rights continue. The Honorable Court in VishalJeet Vs Union of India56 explained the pathetic situation of the victims: “No denying the fact that prostitution always remains as a running sore in the body of civilization and destroys all moral values. The causes and evil effects of prostitution maligning the society are so notorious and frightful that none can gainsay it. This malignity is daily and hourly threatening the community at large slowly but steadily making its way onwards leaving a track marked with broken hopes. Therefore, the necessity for appropriate and drastic action to eradicate this evil has become apparent but its successful consummation ultimately rests with the public at large. It is highly deplorable and heart-rending to note that many poverty stricken children and girls in the prime of youth are taken to ‟flesh market‟ and forcibly pushed into the ‟flesh trade‟ which is being carried on in utter violation of all cannons of morality, decency and dignity of humankind. There cannot be two opinions–indeed there is none–that this obnoxious and abominable crime committed with all kinds of unthinkable vulgarity should be eradicated at all levels by drastic steps.” The Honorable Supreme Court in Vishaljeet Vs Union of India57 laid down certain guidelines for eradication of the malady: This devastating malady can be suppressed and eradicated only if the law enforcing authorities in that regard take very severe and speedy legal action against all the erring persons such as pimps, brokers and brothel keepers. The Courts in such cases have to always take a serious view of this matter and inflict consign punishment on proof of such offences. Apart from legal action, both the Central and the State Government who have got an obligation to safeguard the interest and welfare of the children and girls of this country have to evaluate various measures and implement them in the right direction.Bhagwati, J. (as he then was) in Lakshmi Kant Pandey v.Union of India58, while emphasizing the importance of children has expressed his view thus: “It is obvious that in a civilized society the importance of child welfare cannot be overemphasized, because the welfare of the entire community, its growth and development, depend 56
1990 AIR 1412 ibid 58 [1984] 2 SCC 244 57
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on the health and well-being of its children. Children are a ‟supremely important national asset‟ and the future wellbeing of the nation depends on how its children grow and develop.” We, after bestowing our deep and anxious consideration on this matter feel that it would be appropriate if certain directions are given in this regard. Accordingly, we make the following directions: 1. All the State Governments and the Governments of Union Territories should direct their concerned law enforcing authorities to take appropriate and speedy action under the existing laws in eradicating child prostitution without giving room for any complaint of remissness or culpable indifference. 2. The State Governments and the Governments of Union Territories should set up a separate Advisory Committee within their respective zones consisting of the secretary of the Social Welfare Department or Board, the Secretary of the Law Department, sociologists, criminologists, members of the women‟s organizations, members of Indian Council of Child Welfare and Indian Council of Social Welfare as well the members of various voluntary social organizations and associations etc., the main objects of the Advisory Committee being to make suggestions of: (a) the measures to be taken in eradicating the child prostitution, and (b) the social welfare programmes to be implemented for the care, protection, treatment, development and rehabilitation of the young fallen victims namely the children and girls rescued either from the brothel houses or from the vices of prostitution. 3. All the State Governments and the Governments of Union Territories should take steps in providing adequate and rehabilitative homes manned by well-qualified trained social workers, psychiatrists and doctors. 4. The Union Government should set up a committee of its own in the line, we have suggested under direction No.(2) the main object of which is to evolve welfare programmes to be implemented on the national level for the care, protection, rehabilitation etc. etc. of the young fallen victims namely the children and girls and to make suggestions of amendments to the existing laws or for enactment of any new law, if so warranted for the prevention of sexual exploitation of children. 5. The Central Government and the Governments of States and Union Territories should devise a machinery of its own for ensuring the proper implementation of the suggestions that would be made by the respective committees.
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6. The Advisory Committee can also go deep into devadasi system and Jogin tradition and give their valuable advice and suggestions as to what best the Government could do in that regard. 7. The copies of the affidavits and the list containing the names of 9 girls are directed to be forwarded to the Commissioner of Police, Delhi for necessary action. We may add that we are not giving an exhaustive list of the members for the constitution of the committee. Therefore, it is open to the concerned Government to include any member or members in the committee as it deems necessary. We hope and trust that his directions given by us will go a long way towards eradicating the malady of child prostitution, Devadasi system and Jogin tradition and will also at the same time protect and safeguard the interests of the children by preventing of the sexual abuse and exploitation. The Honorable Supreme Court in Gaurav Jain v. Union of India59 had keeping in view the legislative inertia and the consequent failure of the Government to protect the rights and interest of the victims, laid down certain guidelines and further directed high level committee be constituted to make an in depth study of these problems and to evolve such suitable schemes as are appropriate and consistent with the guidelines. The Supreme Court realizing the enormity of the problem and the need to urgently mend the systematic and symbolic failures proceeded to give further directions in the manner as follows: “The Minister of Welfare, Government of India will constitute a Committee consisting of the Secretary in charge of Department of Women the Child Development as the chairperson and three or four Secretaries from the concerned State Governments, to be nominated by the Minister of Welfare. They would make an in-depth study into these problems and evolve such suitable schemes as are appropriate and consistent with the directions given above. The Committee should be constituted within one month from the date of the receipt of this judgment. The Committee should finalize the report within three months thereafter. As soon as the report is submitted, the same may be communicated to all the State Governments and the concerned Ministries for their examination. Within two month from date of the communication, the Minister of Welfare, Government of India, in coordination with the Prime Minister Office should convene a meeting presided over by the Prime Minister, with Minister of Welfare, Home Minister, Human Resource Minister, the concerned Minister, Human Resource Minister, the concerned Ministers of the State Governments and their Secretaries as well to discuss the problem and take decision. The Committee should finalise the report with further suggestions or amendments, if suggested in the conference. Thereafter, the report should be finalised and then direction would be given to the State Governments for effective implementation of the schemes. The nodal Department would enforce and regularly be supervised by the Ministry of Welfare, Government of India. A 59
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permanent Committee of Secretaries should be constituted to review the progress of the implementation on annual basis, and to take such other steps as may be expedient in the effective implementation of the schemes. Periodical progress as to funding and enforcement of the scheme should be submitted to the Registry of this Court. If further directions would be needed, liberty is given to the parties to approach this Court. In that view of the matter, it is believed and hoped that the above law and directions would relieve the human problem by rehabilitation of the unfortunate fallen women cought in the trap of prostitution ; their children would be brought into the mainstream of the social order ; these directions would enable them to avail the equality of opportunity and of status, with dignity of person which are the arch of the Constitution.” The Advisory committee formed pursuant to the judgment of this Honorable Court in Vishal Jeet v. Union of India60 have remained defunct and many states have not even convened meetings of the committee. The Central Advisory Committee formed by the Government of India, Ministry of Women and Child has been meeting regularly since 2005 and has been addressing the problems of trafficking. Though the committee has not focused on the issue of rehabilitation of women in prostitution. These committees were formed with the intention to promote inter department cooperation and approach the problem in a unified manner. When Shakti Vahini (Writ Petition 190 0f 2002) had petitioned to the Supreme Court that such committees were not functional and pursuant to the Supreme Court notice many governments had formed the committees just to file affidavits in the Supreme Court. After that again these committees became non-functional. The National Plan of Action 1998 formed pursuant to the Honorable Supreme Court order has remained a dead document as nothing much has been done for the emancipation of women victims. The National Human Rights Commission in 2006 has also framed a Plan of Action to combat Trafficking but the same has also remained as a dead document. The Government of India has initiated several initiatives in collaboration with NGOs to combat trafficking and has also formed a special cell in the Ministry of home Affairs, Government of India as the Nodal Agency for the Anti-Human trafficking Units. The law enforcement agencies are also being sensitized on the issue of Trafficking and several modules for police trainings have been formulated by United Nations office on Drugs and Crimes (UNODC) , Bureau of Police Research and Development (BPRD) and Ministry of Home Affairs. The Union of India in collaboration with NGOs has launched Ujjwala and Swadhar Schemes which are more focused towards trafficked children and as short stay homes. The Government of India unfortunately has till date not devised any proper scheme for rehabilitation for women in prostitution so that they can become part of the mainstream.
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RATIFICATION OF THE UN PROTOCOL ON HUMAN TRAFFICKING The Government of India has recently ratified the UN Protocol. This also implies that Government of India formally adopting definition of Human Trafficking which is :―Trafficking in persons‖ which shall mean the recruitment, transportation, transfer, harboring 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 UN Protocol makes Human Trafficking and Smuggling a organized crime and call upon states to provide victim support, victim repatriation, witness support and protection , Joint Investigations between member nations etc. It specially calls upon nations to ensure implementing measures to provide for the physical, psychological and social recovery of victims of trafficking in persons, including, in appropriate cases, in cooperation with non-governmental organizations, other relevant organizations and other elements of civil society, and, in particular, the provision of: (a) Appropriate housing; (b) Counseling and information, in particular as regards their legal rights, in a language that the victims of trafficking in persons can understand; (c) Medical, psychological and material assistance; and (d) Employment, educational and training opportunities. It mandates nations to ensure that take into account the age, gender and special needs of victims of trafficking in persons, in particular the special needs of children, including appropriate housing, education and care. It also provides for nations to provide for the physical safety of victims of trafficking in persons while they are within its territory and ensure that its domestic legal system contains measures that offer victims of trafficking in persons the possibility of obtaining compensation for damage suffered. It takes a commitment from nations that they shall establish comprehensive policies, programs and other measures inter alia to prevent and combat trafficking in persons; and (b) to protect victims of trafficking in persons, especially women and children, from re-victimization. States Parties shall endeavor to undertake measures such as research, information and mass media campaigns and social and economic initiatives to prevent and combat trafficking in persons. Policies, programs and other measures established in accordance with this article shall, as appropriate, include cooperation with nongovernmental organizations, other relevant organizations and other elements of civil society. States Parties shall take or strengthen measures, including through bilateral or multilateral cooperation, to alleviate the factors that make persons, especially women and children, vulnerable to trafficking, such as poverty, underdevelopment and lack of equal opportunity. States Parties shall adopt or strengthen legislative or other measures, such as educational, social or cultural measures, including through bilateral and multilateral cooperation, to discourage the demand that fosters all forms of exploitation of persons, especially women and children that leads to trafficking. 57
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It mandates that nations shall, as appropriate, cooperate with one another by exchanging information, in accordance with their domestic law, to enable them to determine: (a) whether individuals crossing or attempting to cross an international border with travel documents belonging to other persons or without travel documents are perpetrators or victims of trafficking in persons; the types of travel document that individuals have used or attempted to use to cross an international border for the purpose of trafficking in persons; and the means and methods used by organized criminal groups for the purpose of trafficking in persons, including the recruitment and transportation of victims, routes and links between and among individuals and groups engaged in such trafficking, and possible measures for detecting them. It ensures that nations shall provide or strengthen training for law enforcement, immigration and other relevant officials in the prevention of trafficking in persons. The training should focus on methods used in preventing such trafficking, prosecuting the traffickers and protecting the rights of the victims, including protecting the victims from the traffickers. The training should also take into account the need to consider human rights and child- and gender-sensitive issues and it should encourage cooperation with nongovernmental organizations, other relevant organizations and other elements of civil society. State Liability The Government of India and the various states have failed in their duty as the problem of prostitution is a serious violation of Fundamental Rights as enshrined in Article 21 and Article 23 of the Constitution of India. India is also a signatory to international conventions such as the Convention on Rights of the Child (1989), Convention on Elimination of all forms of Discrimination Against Women (1979), UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children (2000) and the latest South Asian Association for Regional Cooperation (SAARC) Convention on Preventing and Combating Trafficking in Women and Children for Prostitution (2002). The Constitutional , International, Statutory obligations and orders of the Honorable Supreme Court makes it mandatory for the Government of India and the different state Government to combat this heinous organized crime and also to provide support to the victims of Prostitution. Rehabilitation / Compensation approach The Supreme Court in Bandhua Mukti Morcha v. Union of India61 has elucidated the rehabilitation of Bonded Labour and directed the Government to award compensation to Bonded labour under the provisions of Bonded Labour System (Abolition) Act 1976 after taking note of serious violation of Fundamental & Human Rights:
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“The other question arising out of the implementation of the Bonded Labour System (Abolition) Act 1976 is that of rehabilitation of the released bonded labourers and that is also a question of the greatest importance, because if the bonded labourers who are identified and freed, are not rehabilitated, their condition would be much worse than what it was before during the period of their serfdom and they would become more exposed to exploitation and slide back once again into serfdom even in the absence of any coercion. The bonded labourer who is released would prefer slavery to hunger, a world of „bondage and (illusory) security‟ as against a world of freedom and starvation. The State Governments must therefore concentrate on rehabilitation of bonded labour and evolve effective programmes for this purpose. Indeed they are under an obligation to do so under the provisions of the Bonded Labour System (Abolition) Act 1976. It may be pointed out that the concept of rehabilitation has the following four main features as admirably set out in the letter dated 2nd September 1982 addressed by the Secretary. Ministry of Labour, Government of India to the various States Governments: (i) Psychological rehabilitation must go side by side with physical and economic rehabilitation; (ii) The physical and economic rehabilitation has 15 major components namely allotment of house-sites and agricultural land, land development, provision of low cost dwelling units, agriculture, provision of credit, horticulture, animal husbandry, training for acquiring 134 new skills and developing existing skills, promoting traditional arts and crafts, provision of wage employment and enforcement of minimum wages, collection and processing of minor forest produce, health medical care and sanitation supply of essential commodities, education of children of bonded laborers and protection civil rights; (iii) There is scope for bringing about integration among the various central and centrally sponsored schemes and the on-going schemes of the State Governments for a more qualitative rehabilitation. The essence of such integration is to avoid duplication i.e. pooling resources from different sources for the same purpose. It should be ensured that while funds are not drawn from different sources for the same purpose drawn from different sectors for different components of the rehabilitation scheme are integrated skillfully; and (iv) While drawing up any scheme/programme of rehabilitation of freed bonded labour, the latter must necessarily be given the choice between the various alternatives for their rehabilitation and such programme should be finally selected for execution as would need the total requirements of the families of freed bonded labourers to enable them to cross the poverty line on the one hand and to prevent them from sliding back to debt bondage on the other. We would therefore direct the Government of Haryana to draw up a scheme on programme for “a better and more meaningful rehabilitation of the freed bonded labourers” in the light of the 59
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above guidelines set out by the Secretary to the Government of India, Ministry of Labour in his letter dated 2nd September 1982. The other State Governments are not parties before us and hence we cannot give any direction to them, but we hope and trust that they will also take suitable steps for the purpose of securing identification, release and rehabilitation of bonded labourers on the lines indicated by us in this Judgment.” The compensation since 1978 has undergone a change and presently the compensation is Rs20,000 and access to Government schemes of poverty alleviation and also housing under Indira Awas Yojana . Supreme Court in MC Mehta V. State of Tamil Nadu and Others62 –seeing the severe violation of fundamental rights in cases of child labour laid down guidelines for compensation and rehabilitation: “It may be that the problem would be taken care of to some extent by insisting on compulsory education. Indeed, Neera thinks that if there is at all a blueprint for tackling the problem of child labour, it is education. Even if it were to be so, the child of a poor parent would not receive education, if per force it has to earn to make the family meet both the ends. therefore, unless the family is assured of income allude, problem of child labour would hardly get solved; and it is this vital question which has remained almost unattended. We are, however, of the view that till an alternative income is assured to the family, the question of abolition of child labour would really remain a will-o‟-the wisp. Now, if employment of child below that age of 14 is a constitutional indication insofar as work in any factory or mine or engagement in other hazardous work, and if it has to be seen that all children are given education till the age of 14 years in view of this being a fundamental right now, and if the wish embodied in Article 39(e) that the tender age of children is not abused and citizens are not forced by economic necessity to enter avocation unsuited to their age, and if children are to be given opportunities and facilities to develop in a healthy manner and childhood is to be protected against exploitation as visualised by Article 39(f), it seems to us that the least we ought to do is see to the fulfillment of legislative intendment behind enactment of the Child Labour (Prohibition and Regulation) Act, 1986. Taking guidance therefrom, we are of the view that the offending employer must be asked to pay compensation for every child employed in contravention of the provisions of the Act a sum of Rs.20,000/-; and the Inspectors, whose appointment is visualized by section 17 to secure compliance with the provisions of the Act, should do this job. The inspectors appointed under section 17 would see that for each child employed in violation of the provisions of the Act, the concerned employer pays Rs.20,000/- which sum could be deposited in a fund to be known as Child Labour Rehabilitation-cum-Welfare Fund. The liability of the employer would not cease even if he would desire to disengage the child presently employed. It would perhaps be appropriate to have such a fund district wise or area wise. The fund so generated shall form 62
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corpus whose income shall be used only for the concerned child. The quantum could be the income earned on the corpus deposited qua the child. To generate greater income, fund can be deposited in high yielding scheme of any nationalized bank or other public body. As the aforesaid income could not be enough to dissuade the parent/guardian to seek employment of the child, the State owes a duty to come forward to discharge its obligation in this regard. After all, the aforementioned constitutional provisions have to be implemented by the appropriate Government, which expression has been defined in section 2(i) of the Act to mean, in relation to establishment under the control of the Central Government or a railway administration or a major port of a mine or oil field, the Central Government, and in all other cases, the State Government. Now, strictly speaking a strong case exists to invoke the and of an Article 41 of the Constitution regarding the right to work and to give meaning to what has been provided in Article 47 relating to raising of standard of living of the population, and Articles 39(e) and (f) as to non-abuse of tender age of children and giving opportunities and facilities to them to develop in healthy manner, for asking the State to see that an adult member of the family, whose child is in employment in a factory or a mine or in other hazardous work, gets a job anywhere, in lieu of the child. This would also see the fulfillment of the wish contained in Article 41 after about half a century of its being in the paramount parchment, like primary education desired by Article 45, having been given the status of fundamental right by the decision in Unni Krishnan 63. We are, however, not asking the State at this stage to ensure alternative employment in every case covered by Article 24, as Article 41 speaks about right to work “within the limits of the economic capacity and development of the State”. The very large number of child-labour in the aforesaid occupations would require giving of job to very large number of adults, if we were to ask the appropriate Government to assure alternative employment in every case, which would strain the resources of the State, in case it would not have been able to secure job for an adult in a private sector establishment or, for that matter, in a public sector organization., we are not issuing any direction to do so presently. Instead, we leave the matter to be sorted out by the appropriate Government. In those cases where it would not be possible to provide job as above-mentioned, the appropriate Government would, as its contribution/grant, deposit in the aforesaid Fund a sum of Rs.5,000/- for each child employed in a factory or mine or in any other hazardous employment. The aforesaid would either see an adult (whose name would be suggested by the parent/guardian of the concerned child) getting a job in lieu of the child, or deposit of a sum of Rs.25,000/- in the Child Labour Rehabilitation-cum- Welfare Fund. In case of getting employment for an adult, the parent/guardian shall have to see that his child is spared from the
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requirement to do the job, as an alternative source of income would have become available to him.” The Supreme Court in Delhi Domestic Working Women’s Forum Vs. Union India and others64 in recognition of severe violation of Fundamental rights of Rape Victims had directed the National Commission Women to evolve a ―scheme so as to wipe out the tears of unfortunate victims of rape‘‘. The Supreme Court observed that having regard to the Directive Principles contained in Article of the Constitution, it was necessary to set up a Criminal Injuries Compensation Board, as rape victims besides the mental anguish, frequently incur substantial financial and in some cases are too traumatized to continue in employment. “In this background, we think it necessary to indicate the broad parameters in assisting the victims of rape. The complainants of sexual assault cases should be provided with legal representation. It is important to have someone who is well- acquainted with the criminal justice system. The role of the victim‟s advocate would not only be to explain to the victim the nature of the proceedings, to prepare her for the case and to assist her in the police station and in court but to provide her with guidance as to how she might obtain help of a different nature from other agencies, for example, mind counseling or medical assistance. It is important to secure continuity of assistance by ensuring that the same person who looked after the complainant‟s interests in the police station represents her till the end of the case. (2) Legal assistance will have to be provided at the police station since the victim of sexual assault might very well be in a distressed state upon arrival at the police station, the guidance and support of a lawyer at this stage and whilst she was being questioned would be of great assistance to her. (3)The police should be under a duty to inform the victim of her right to representation before any questions were asked of her and that the police report should state that the victim was so informed. (4) A list of advocates willing to act in these cases should be kept at the police station for victims who did not have a particular lawyer in mind or whose own lawyer was unavailable. (5)The advocate shall be appointed by the court, upon application by the police at the earliest convenient moment, but in order to ensure that victims were questioned without undue delay, advocates would be authorized to act at the police station before leave of the court was sought or obtained. (6)In all rape trials anonymity of the victim must be maintained, as far as necessary.
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(7)It is necessary, having regard to the Directive Principles contained under Article 38(1) of the Constitution of India to set up Criminal Injuries Compensation Board. Rape victims frequently incur substantial financial loss. Some, for example, are too traumatized to continue in employment. (8) Compensation for victims shall be awarded by the court on conviction of the offender and by the Criminal Injuries Compensation Board whether or not a conviction has taken place. The Board will take into account pain, suffering and shock as well as loss of earnings due to pregnancy and the expenses of child birth if this occurred as a result of the rape. 16. On this aspect of the matter we can usefully refer to the following passage from The Oxford Handbook of Criminology (1994 Edn.) at pages 1237-38 as to the position in England: ”Compensation payable by the offender was introduced in the Criminal Justice Act, 1972 which gave the Courts powers to make an ancillary order for compensation in addition to the main penalty in cases where „injury, loss, or damage‟ had resulted. The Criminal Justice Act, 1982 made it possible for the first time to make a compensation order as the sole penalty. It also required that in cases where fines and compensation orders were given together, the payment of compensation should take priority over the fine. These developments signified a major shift in penological thinking, reflecting the growing importance attached to restitution and reparation over the more narrowly retributive aims of conventional punishment. The Criminal Justice Act, 1988 furthered this shift. It required courts to consider the making of a compensation order in every case of death, injury, loss or damage and, where such an order was not given, impose a duty on the court to give reasons for not doing so. it also extended the range of injuries eligible for compensation. These new requirements mean that if the court fails to make a compensation order it must furnish reasons. Where reasons are given, the victim may apply for these to be subject to judicial review …. The 1991 Criminal Justice Act contains a number of provisions which directly or indirectly encourage an even greater role for compensation.” 17.Section 10 of the Act states that the National Commission for men shall perform all or any of the following functions, namely:, (a) Investigate and examine all matters relating to the safeguards provided for women under the Constitution and other laws. (b) Call for special studies or investigations into specific problems or situations arising out of discrimination and atrocities against women and identify the constraints so as to recommend strategies for their removal. 18. Having regard to the above provisions, the third respondent will have to evolve such scheme as to wipe out the tears of such unfortunate victims. such a scheme shall be prepared within six
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months from the date of this judgment. Thereupon, the Union of India, will examine the same and shall necessary steps for the implementation of the scheme at the earliest. The National Commission for Women pursuant to the orders of the Honourable Supreme Court has drafted a scheme for Compensation. Some states have already started the implementation of the scheme. The scheme The scheme has proposed a compensation of Rs2 to Rs3 Lakhs for Rape victims. The Government of India has recently amended the The Code of Criminal Procedure 1973 as amended by The Code of Criminal Procedure (Amendment) Act 2008 ( 5 of 2009) has now an added provision in the form of the section 357-A on victim compensation. “357A. Victim compensation scheme. — (1) Every State Government in co-ordination with the Central Government shall prepare a scheme for providing funds for the purpose of compensation to the victim or his dependents who have suffered loss or injury as a result of the crime and who, require rehabilitation. (2) Whenever a recommendation is made by the Court for compensation, the District Legal Service Authority or the State Legal Service Authority, as the case may be, shall decide the quantum of compensation to be awarded under the scheme referred to in sub-section (1). (3) If the trial Court, at the conclusion of the trial, is satisfied, that the compensation awarded under section 357 is not adequate for such rehabilitation, or where the cases end in acquittal or discharge and the victim has to be rehabilitated, it may make recommendation for compensation. (4) Where the offender is not traced or identified, but the victim is identified, and where no trial takes place, the victim or his dependents may make an application to the State or the District Legal Services Authority for award of compensation. (5) On receipt of such recommendations or on the application under sub-section (4), the State or the District Legal Services Authority shall, after due enquiry award adequate compensation by completing the enquiry within two months. (6) The State or the District Legal Services Authority, as the case may be, to alleviate the suffering of the victim, may order for immediate first-aid facility or medical benefits to be made available free of cost on the certificate of the police officer not below the rank of the officer in charge of the police station or a Magistrate of the area concerned, or any other interim relief as the appropriate authority deems fit.”. Article 23of the Constitution of India prohibits ,‖Traffic in Human Beings‖ this Honorable Court has held that the expression ―Traffic in Person‖ in Article 23(1) of the Constitution of India is 64
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evidently a very wide expression which includes the prohibition of traffic in women for immoral and other purposes . In the case of women in prostitution the failure to implement the National Plan of Action drafted pursuant to the judgments in Gaurav Jain vs Union of India 65 has resulted in serious deprivation of fundamental rights. The trafficked victims and women in prostitution go through serious fundamental rights violation which includes bondage and sexual slavery and repeated rape and gang rape. The crimes are very serious in nature which results in deprivation of Fundamental Rights and therefore the state is liable. As mentioned above this Honorable Court has already ordered compensation in Bonded Labour and for victims of Rape, the victims of Human Trafficking and women in Prostitution also are eligible for compensation from the State. The failure of the Union of India and the State Governments to draft a suitable rehabilitation scheme for women in prostitution is a serious violation of orders of this Honorable Court and also violation and deprivation of Article 21 and Article 23(1) of the Constitution of India. Article 23 read with Article 39, 41 and 42 together constitute inalienable rights and the failure to grant such right would constitute deprivation of basic fundamental rights. The problem of trafficking and prostitution is also serious violation of Article 14, Article 19 of the Constitution of India. A way forward – Suggested Recommendations Shakti Vahini after held several meetings with women victims of the red light area of GB Road on the issue of Rehabilitation after the Honorable Supreme Court issued notice to the Union of India and all states in the present case. The victims have provided suggestions as to how the State can formulate schemes which can help them to reintegrate back to the society. The victims have also come out with suggestions so that they can be reintegrated in the society and also be rehabilitated which are as follows: 1. Compensation to be paid for serious violation and deprivation of Fundamental rights. 2. The women in prostitution are in bondage condition for several years. As a result there is a serious loss of identity and the organized crime changes their names frequently. This ultimately leads to having no identity and hence access to government schemes and government facilities are completely not available to the Victims. The Government of India and the State Government should at once issue identity cards , Ration Cards , UID Cards so that domicile can be proved. Without these documents the women have no approach to the government facilities. 3. The Women victims of prostitution and Human Trafficking undergo serious violation of Fundamental rights and are forced to live a life of sexual slavery and bondage. They have
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no source of income and they should be treated as Below Poverty Line. This will enable them to access the schemes for Poverty Alleviation. 4. Most of the victims of Human Trafficking and Women in Prostitution belong to the lower strata of the society and are tribal and belong to the SC and ST communities. The schemes for alleviation of these communities should be open to all those victims who belong to such communities. 5. The Government should provide schemes for training and Income generation programme and also link these schemes with Nationalized Banks and agencies like Rashtriya Mahila Kosh. The training provided should encourage entrepreneurship and these needs to be supported by easy and low interest credit. Services of NGOs can be asked to provide mentor support. 6. The victims of trafficking and prostitution who want to leave the place should be provided residential facilities and rehabilitation scheme as soon as possible. 7. All schemes of social security and Health facilities should be accessible to victims of trafficking. 8. Legal aid and legal support should be provided to the victims. 9. States in destination area should also accept responsibility of victims as they are liable because their fundamental rights violation has taken in the destination areas. This is because many a times states pass on the responsibility of the victims on the home state and the home states accepts no responsibility. 10. The present schemes of swadhar and Ujjwala are completely irrelevant compared to the magnanimity of the crime. 11. Any scheme devised by the Government of India should have strong budgetary support. 12. The victims of trafficking and women in prostitution categorically state they are victims of organized crime and have landed in this situation due to they were forced in this situation. They all agree that in no case prostitution should be allowed or regulated. 13. Government should frame stringent laws to convict traffickers who indulge in trafficking of women and children. The Law enforcement agencies should take action against such criminals. 14. The whole illegal business of prostitution is run by organized crime who have links across the country. The honorable court should direct the law enforcement agencies to launch investigation against these perpetrators When the Supreme Court said that the victims of Commercial Sexual Exploitation should be provided ―a life of dignity‖ it should not be meant that the court is talking about legalization. Organizations and individuals with vested interest who have to gain from such illegal trade start speaking about the legalization issue. It is a reality that Government of India has never had a serious view on the issue of rehabilitation. It may be thing of past as the Government of India with the liberalization of the economy has now no dearth of the funds to do it. The Government is already spending huge 66
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amounts in National Rural Health Mission, Sarva Shiksha Abhjiyan , National Rural Employment Gurantee Scheme, Integrated Child Protection Scheme (ICPS) & etc. Recently the Government of India has launched Anti Human Trafficking Units across the country. This is a specialized force which will work exclusively to combat Human Trafficking. The results are already being felt with more such gangs being busted. This is the right time we thought seriously about rehabilitation of victims of human trafficking. We don‘t need to think about ifs and buts- it is time for action. Pro-poor judicial initiatives: now for a media push66 Three pronouncements made on three consecutive days this month by the Supreme Court of India have brought relief to different groups of economically and socially deprived people. The beneficiaries include children sold out by poor parents to work in circuses as child labour; young men and women determined to get married crossing caste barriers and harassed for that very reason by ‗khap panchayats‘; and the hungry poor across the country denied their right to food, even as thousands of tonnes of food grains rot in government godowns. Interestingly, the media, by and large, have been playing a proactive role in bringing the issues on to the public agenda. Daily newspapers and magazines have published several articles about hundreds of children, mostly girls, who were brought to India from neighbouring countries, especially Nepal and Bangladesh, to work in circus companies that have proliferated across the country. The living conditions were inhuman, resembling slavery. Thanks to some dedicated NGOs working in India and Nepal, the Indian media have exposed the trafficking in girls, who end up being exploited and sexually abused by circus owners and their men. This is the pathetic life of girls bought for paltry sums of money from poor parents not only from adjacent countries but also from Indian States such as Uttar Pradesh and Bihar. This is the price these hapless children and their families pay to keep our children laughing. BBC News and international news agencies have also reported on the girls‘ sufferings, while performing high-risk high-wire programmes. Two decades ago, the hundreds of circus companies were in deep trouble owing to a gradual decline in public patronage. They sought State help to keep them going and save their performers and the emaciated animals that trek with them from camp to camp. The emergence of a large middle class with real purchasing power restored the economic health of the circuses, which have become one of the favorite entertainers for middle class children.
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http://www.hindu.com/2011/04/25/stories/2011042552971100.htm-Posted in CHILD ABUSE, CHILD RIGHTS, CONSTITUTION, CRIME AGAINST WOMEN, FUNDAMENTAL RIGHTS, JUDICIARY, JUSTICE, RIGHT TO LIFE, SUPREME COURT, TRAFFICKING, VICTIM COMPENSATION by NNLRJ INDIA on April 25, 2011
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A rights-based judgment In a rights-based judgment delivered on April 18, the Supreme Court banned the employment of children in circus companies. The court directed the Central government to take immediate steps to rescue the suffering circus workers and arrange for their rehabilitation. Passing orders on a petition filed by the Bachpan Bachao Andolan, an organisation working for children, a Division Bench comprising Justice Dalveer Bhandari and Justice A.K. Patnaik directed the central government to issue suitable notifications prohibiting employment of children in circuses within two months, in order to implement the fundamental right of children under Article 21-A of the Constitution, which guarantees the right to ―free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine.‖ The Bench asked the government to raid all circuses and liberate children and check violation of their fundamental rights. Another Supreme Court judgment delivered on April 19 was highly critical of the caste system and declared ‗khap panchayats‖ illegal. They were instrumental, the court observed, in encouraging honour killings and indulged in other atrocities against boys and girls married or tried to marry from outside their castes. The Bench, comprising Justice Markandey Katju and Justice Gyan Sudha Misra, wanted the government to ruthlessly stamp out the barbaric practice. A significant aspect of the judgment was that it directed the administrative and police officials to take strong steps to prevent such atrocious acts as honour killing. The court also asked for departmental action against officials who failed on this score. It may be recalled that when States such as Haryana and Rajasthan reported a series of honour killings a few months ago, the media went all out against the spread of the crimes and the failure of the State police and administration to arrest it. When the Central government floated the idea of a ban on khaps, even Chief Ministers and ex-Minister sought to scuttle the move. Starvation deaths No less important is the serious concern expressed by Justices Dalveer Bhandari and Deepak Verma over the increasing number of starvation deaths in the country. They were hearing petitions relating to the streamlining of the public distribution system (PDS). The Supreme Court has once again questioned the approach of the Central government to the eradication of malnutrition and its failure to arrest starvation deaths in some areas. Justice Bhandari also questioned the Planning Commission‗s estimate that 36 per cent of the population was below the poverty line, which was inconsistent with the claim of several States, including Congress-ruled States, that the percentage was much larger. The judge wondered how the Planning Commission could fix a per capita daily income of Rs. 20 for urban areas and a per capita daily income of Rs. 11 for rural areas to determine BPL status. He also wanted the Deputy Chairman of the Planning
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Commission to file a detailed affidavit within a week ―because the entire case rests on your figures.‖ Progressive voices, including economists, scientists, and social activists, have been articulating in the media the demand for a universal PDS. When the National Advisory Committee was about to endorse it, the government ruled it out once again. At a time the Supreme Court has stepped up the pressure for a pro-people solution, a well-informed and decisive media push will certainly help. Protecting women67 The criminal justice system needs immediate repair in order to curb crimes against women. A RULING party legislator in Uttar Pradesh rapes a 17-year-old Dalit girl and thereafter slaps a charge of theft on her. The victim spends a whole month in jail on trumped-up charges. A BPO (business process outsourcing) employee in Delhi is abducted by a five-member gang, raped and abandoned on the outskirts of Delhi. An Ahmedabad teenager is abducted by the husband of her tuition teacher who lives next door and is released only after a ransom is paid. (It is an entirely another matter that the police in this case took the offender and his ally for a ride by generously mixing the ransom bundle with fake currency.) A top-ranking Indian diplomat, a member of the elitist Indian Administrative Service, beats up his wife while on a posting in London and wakes up the entire neighbourhood, which brings him to the notice of the Metropolitan Police. Instances such as these, reported with predictable regularity, should make us sit up and ask ourselves whether we, as citizens of a country that boasts a hoary tradition of safeguarding women, are doing enough to protect women. Or have we, as in the case of corruption, given up the fight? I am not for a moment suggesting that the incidence of crime against women and domestic violence is any higher in India than in other countries. Defensive policemen will say that India is not all that badly off compared with other nations. That is a fallacious way of tackling what is very much our own problem. We should be concerned about what is happening on our doorstep. We need to aim at zero tolerance and ward off predators so that our mothers, sisters, wives and daughters can go about their business unhindered and unharmed. It is as simple as that. There are several ways to approach the problem. Whenever a major crime against a woman or a girl child is reported, the media lap it up and sensationalise it. The casualty is objective reporting, 67
http://www.frontlineonnet.com/stories/20110211280309700.htm-Posted in CRIME AGAINST WOMEN, CRIMINAL JUSTICE SYSTEM, JUDICIAL REFORMS, SEXUAL OFFENCES, VICTIM COMPENSATION, VICTIMS by NNLRJ INDIA on January 30, 2011
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and there is a resultant vilification of those who are only remotely connected with the offence or the offender. Seldom have I seen a report that teaches women and children how to protect themselves. The media could do a lot by way of introspecting and fine-tuning their coverage of attacks on women. There is a lot of hype relating to the inadequacies of the law. No law is perfect however carefully it may have been drawn up. It yields itself to poor enforcement by criminal justice agencies and to misuse, sometimes, by alleged victims and those associated with them. While the offence of demanding dowry and the violence that accompanies it are reprehensible, I would attach greater importance to crime of rape. It is the most heinous of crimes. The experience the world over is that the offender is invariably known to the victim. This phenomenon highlights the need for women to exercise caution even while dealing with those related to them. Just a few days ago, I came across a report from Delhi stating that a retired paramilitary officer had been arrested for raping his own niece, the mother of a grown-up girl. Rapes of daughters by their own fathers are also not unknown. It is the fundamental duty of every woman to protect herself by taking the maximum precautions even if these sometimes assume the proportions of paranoia. Here I must commend the practice of many private corporations with a huge female workforce of escorting their women employees to their homes when they have to work a late shift. This arrangement is enforced strictly by the company administration because any mishap could affect the reputation of the whole organisation. The drill has a male associate remaining in a company vehicle until the women colleagues travelling along with him are dropped off at their homes. But I know of some women employees who breach such security measures by insisting on leaving the office by themselves even at a late hour. This is dangerous conduct amounting to culpable negligence, which many a time leads to a crime on the individual. Not many legislators are willing to concede that it is the certainty of punishment that is more important in preventing crime than the severity of the penal law. A stringent code does not mean anything unless it is practical and enforceable. This is why I am amused whenever our lawmakers demand death for sexual offenders. On paper this is a legitimate and reasonable demand. The point, however, is that to award the death penalty a judge would have to be wholly convinced that the crime had in fact been committed by the offender arraigned before the court. What this means is that the quantum and quality of evidence needed gets pushed up greatly so as to leave no holes whatsoever in the prosecution‘s case. The Indian experience is that the quality of rape investigations leaves a lot to be desired for several reasons, including lack of professionalism and adequate training. Perhaps more crucial is the lack of integrity among investigators who tend to support an influential and affluent offender.
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Favoured treatment The latest horror reported from Uttar Pradesh amplifies this. A ruling party MLA almost got away with violating a Dalit girl. To cap it all, he successfully framed the victim by alleging she had stolen money and a mobile phone from his home, where she was possibly a maid. The local police were obviously in cahoots with the MLA because he is from the ruling party. But for the Opposition taking up the matter, the crime would not have come to the notice of the public. It required a Chief Minister to direct his arrest and the release of the innocent girl. This was an instance of favoured treatment of an influential politician by the police. The police ignored the law and dragged their feet by not arresting the MLA immediately after the victim‘s complaint. This failure of the police to perform their fundamental duty should by itself demonstrate the futility of having severe laws to safeguard women‘s rights. What is required is an honest police force that is sensitive to the plight of women. Without this, nothing will be achieved through measures such as prescribing the death penalty for sex offenders. Police inadequacies while investigating rapes and child sexual abuse are no doubt glaring. They have also received the public opprobrium they well deserve. What is not well known, however, is the arbitrariness and questionable integrity of trial judges. Many of them look anxiously for even the most trivial of inconsistencies in the prosecution‘s case so that they can discharge the accused. Accused persons are often given the benefit of the doubt even when there is abundant material to sentence them; this at a time when the Supreme Court has given sanction for a liberal interpretation of the rape law. The court has gone to the extent of saying that even an uncorroborated testimony of the victim is enough to sustain a conviction as long as the judge is convinced of the genuineness of the complainant. If trial judges still do not set much store by this ruling, it is a tragedy beyond words. The criminal justice system needs immediate repair if deterrence against crime, especially against women and children, is to be ensured. It is for the higher judiciary to ponder and introduce imaginative training programmes that will generate a new mindset among trial judges. It is simultaneously necessary to identify judgments that are so lax in their reasoning that they enable predators to go unpunished. This is a task that has to be done nationally, possibly under a Supreme Court fiat with tightly worded instructions issued to High Courts and session‘s courts to ensure greater professionalism during trials. In my view nothing else will work to reverse a situation that is becoming alarming.
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Integrated Child Protection Scheme (ICPS)68 Evaluation of the child protection schemes of the Ministry of Women & Child Development, including the scheme ‗An Integrated Programme for Street Children‘, in 2007 revealed shortcomings and gaps in these schemes and their implementation. To bridge these gaps and to provide safe and secure environment for overall development of children in difficult circumstances, the Government of India in the Ministry of Women and Child Development, has introduced a new comprehensive Centrally Sponsored Scheme, namely, Integrated Child Protection Scheme (ICPS) w.e.f. 2009-10 by merging three erstwhile schemes, including the scheme ‗An Integrated Programme for Street Children‘ with additional components. This Scheme is being implemented through State Governments/ UT Administrations. Under this Scheme, there is provision for setting up of ‗Open Shelters‘ for children in need of care and protection, including the street children, in urban and semi-urban areas. The programmes and activities of these Open Shelters inter alia include age-appropriate education, access to vocational training, recreation, bridge education, linkages to the National Open School Programme (NOSP), health care, counseling etc. There is no proposal in the Ministry of Women and Child Development to conduct a specific study to ascertain the number of street children in the country; However, ICPS provides for setting up of District Child Protection Societies by the State Governments/ UT Administrations in every district of the State. The role and responsibility of the District Child Protection Society includes identifying families and children at risk to prevent destitution of children and carrying out a situational analysis of children in difficult circumstances, including street children. Section 62 of the Juvenile Justice (Care and Protection of Children) Act, 2000 provides that every State Government/Union Territory Administration shall constitute Child Protection Units for every district. To facilitate the States/UTs in setting up such Units, financial assistance is being provided to them on a cost sharing basis (90 per cent for North Eastern States and State of Jammu & Kashmir and 75 per cent for other States) through a Centrally Sponsored Scheme, namely Integrated Child Protection Scheme (ICPS). As ICPS has been introduced very recently, i.e. in 2009-10, and the States have just commenced the implementation the Units are being progressively established by them. During the current year, 18 States have submitted the financial proposals for release of grants under this Scheme.
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Posted in CHILD ABUSE, CHILD RIGHTS, CRIMINAL JUSTICE SYSTEM, FUNDAMENTAL RIGHTS, SEXUAL OFFENCES, VICTIM COMPENSATION, VICTIMS by NNLRJ INDIA on November 26, 2010-This information was given by Smt. Krishna Tirath, Minister of State for Women and Child Development in a written reply to a question in the Lok Sabha today.
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Funds have already been released to 7 States. State -wise number of Units established, and funds released to them are at Annex. ICPS provides for establishment of institutional mechanisms for monitoring the implementation of ICPS, including performance of the DCPS. Such mechanisms include District Child Protection Committees (DCPCs) at District level and State Child Protection Committee (SCPC) at State level and Central Project Support Unit (CPSU) under the Government of India in the Ministry of Women and Child Development. As the Scheme is at the initial stage of implementation, it is early to undertake the annual appraisal.
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APPROACH HIGH COURTS FOR ACTION AGAINST WITCH-HUNTS69 IANS The Supreme Court Friday refused to entertain a plea seeking strict implementation of domestic laws against witchhunts that has resulted in the deaths of over 2,500 women in the last 15 years. A bench of Chief Justice K.G. Balakrishnan, Justice Deepak Verma and Justice T.S. Thakur refused to entertain the lawsuit, asking the petitioner, a civil society group, to approach the high courts of various states affected by social campaigns against alleged practices of black magic and witchcraft. The lawsuit was filed on behalf of nearly 1,000 rural women branded as witches by a civil society group ‗Rural Litigation and Entitlement Kendra, accredited with the Economic and Social Council of the United Nations. Appearing for the civil society group, counsel Meenakshi Arora sought enforcement of various domestic laws banning the practice of black magic and witchcraft in the states of Assam, Bihar Jharkhand, Orissa, Chhattisgarh and Rajasthan. Arora argued that even a few days earlier, two women were branded as witches and punished by their co-villagers for allegedly practicing witchcraft and black magic. But the apex court refused to entertain the plea. As Arora sought to press for their plea to be accepted on the grounds that it was related to the welfare of women and against their victimization, the bench referred to the recent bill for greater representation of women in state and union legislatures. ‗You now have more MPs and MLAs (legislators),‘ said the bench. The lawsuit by Arora said the civil society group was asked by the women in an unanimous resolution to represent their case before the Supreme Court at the end of a three-day workshop conducted jointly with the National Legal Services Authority in Ranchi Jan 17-19, 2010. The court may kindly intervene into the matter in the interest of justice for the protection of the life and dignity of the exploited women…,‘ the petition said. ‗These women are drawn from rural areas and belong to the weaker sections of society. One of the most disturbing and least resisted forms of gender violence we encounter in our times in India centres around witch-hunts. In the last 15 years, more than 2,500 women have been killed in the name of witchcraft,‘ said the petition. Four of the states have already enacted anti-witch craft statutes. Bihar was the first one with its Prevention of Witch (Dayan) Practices Act of 1999, Jharkhand followed with the Anti-Witchcraft Act in 2001 and then Chhattisgarh and Rajasthan enacted their own laws in 2005 and 2006 respectively. ‗Ministry of Women and Child Development may kindly be directed to immediately create a separate fund and social scheme to support victims of ‗dayan pratha‘ (witch hunts) financially and secure their rehabilitation,‘ the 69
Posted in ACCESS TO JUSTICE, CONSTITUTION, COURTS, CRIME AGAINST WOMEN, VICTIM COMPENSATION, VICTIMS by NNLRJ INDIA on March 12, 2010
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petition sought. It also requested the court to direct the Ministry of Home Affairs to honour its international legal obligations for protection of women and weaker sections of society Wanted: A fairer law How could a woman of easy virtue claim to have been raped? The policemen accused of raping a tribal woman were let off on that reasoning. It took such a miscarriage of justice by the Supreme Court in the 1978 Mathura rape case to trigger a nationwide campaign against anti-woman laws. Many changes have since been made in the statute book, including the provisions relating to rape. Some of the more important gender law reforms that are overdue. RESERVATION FOR WOMEN IN ASSEMBLIES AND PARLIAMENT Despite misgivings of tokenism, the 1993 measure of reserving one third of the seats for women in the third tier of the Indian democracy – Panchayati Raj and Nagar Palika – has proved successful in empowering the targeted group. But all attempts to extend the same principle to state legislative assemblies and Parliament have come to naught because of resistance, overt or covert, from various political parties. However, the latest attempt made in 2008 seems promising, not the least because the Bill was introduced for the first time in the Rajya Sabha and, therefore, did not lapse when there were elections to the Lok Sabha the following year. One sticky issue that has remained is that the proposed rotation of reserved constituencies in every election may reduce the incentive for an MP to work for his constituency as he may be ineligible to seek re-election from there. COMPULSORY REGISTRATION OF MARRIAGES In a bid to prevent child marriages, polygamy and desertions, the Supreme Court declared in 2006 that it was compulsory for all marriages to be registered. But when it reviewed the implementation of its verdict the following year, the apex court found that only some of the states had framed the necessary rules for compulsory registration of marriages. It was also noticed that those fresh rules were made only in respect of Hindus. None of the states dared touch the Muslim law, partly because it apparently permits polygamy and partly because the Supreme Court judgment was liable to be misconstrued by minorities as an attempt to force a uniform civil code through the backdoor. The Hindu law was perceived to be more amenable to this reform as it already provides registration of marriage as an option. ACCEPT IRRETRIEVABLE BREAKDOWN OF MARRIAGE While divorce by mutual consent or no-fault divorce was introduced way back in 1976, no government has so far mustered the will to enact the next logical reform. Namely, to empower the courts to grant divorce even when one of the two parties is opposed to it and none of the prescribed grounds for divorce could be established. The Supreme Court has repeatedly called 75
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for the introduction of ―irretrievable breakdown of marriage‖ so that the judiciary in India, as its counterparts in advanced countries, is empowered to grant divorce on coming to the conclusion that the marriage was beyond repair. RESTRICT THE FREEDOM TO BEQUEATH ONE’S PROPERTY The unfettered freedom among Hindus to bequeath their self-acquired properties to any person(s) of their choice has often worked against the interests of their female legal heirs, especially daughters. Experts have suggested that a Hindu should have the discretion to bequeath by a will only up to two-thirds of his properties. The remaining one-third of his estate should be governed by the succession law, which has been reformed in recent years to include daughters among legal heirs. CHECKING ABUSE OF DOWRY LAW The abuse of Section 498A IPC is as patent as the need to confer such protection on the wife from the cruelty of the husband or his relatives for dowry or otherwise. There is clearly a need to amend this law, if nothing else because women too (mothers-in-law or sisters-in-law )are often casualties of its abuse. In a bid to save this well intentioned provision from the odium of being a cover for blackmail, the courts have repeatedly directed that the police should not resort to arrests till they complete their investigation and file a charge sheet. ALLOWING WOMEN TO COMPLAIN AGAINST ADULTEROUS HUSBAND In one of its most anti-feminist provisions, the Indian Penal Code 1860 defines adultery as an offence that is actionable only between the adulterer and the aggrieved husband. But if the husband commits adultery, the wife cannot seek action against him and his sexual partner. The husband can get into trouble only if his sexual partner happens to be married and, then too, only from her husband. Surprisingly, the Supreme Court upheld this iniquitous provision in 1985 on the ground that it was dealing with ―a wrong against the sanctity of the matrimonial home‖. But the Law Commission and the Malimath Committee on criminal justice reforms proposed that the adultery provision be made gender-neutral. WIDENING THE SCOPE OF RAPE For all the possible ways in which this extremely violent offence is committed, the definition of rape, provided in Section 375 of the Indian Penal Code 1860, hangs by a narrow thread. While ―sexual intercourse‖ is a necessary condition, ―penetration‖ is stipulated as a sufficient condition. This means that, however much he might have sexually assaulted the victim, the offence of rape is not made out unless the crime involved ―penile-vaginal penetration‖. The Law Commission, therefore, suggested a fresh definition, which makes it clear that penetration could be of vagina, 76
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anus or urethra, with any part of the body of another person or object manipulated by another person. It also seeks to include oral sex and manipulation of any part of the body with sexual intent. CRIMINALISING MARITAL RAPE One leftover of the old notion that the wife is the husband‘s property is the absence of any recognition of the fact that she could be raped even within the institution of marriage. Mercifully, the one circumstance in which marital rape is acknowledged by law is when the wife is less than 15 years old. Even so, she will have to lodge the complaint within a year and then the husband, upon conviction, would get a maximum sentence of two years. This is a far cry from the minimum stipulated sentence of seven years for rape. Though child wives do need greater protection, there is no justification for the presumption that, unlike their counterparts in western countries, Indian wives above the age of 15 can never be raped by their husbands. The closest the law has come to recognising this crime is in the context of the 2005 Domestic Violence Act, which created a civil remedy for such victims even as it refrained from criminalising marital rape. ENACT A LAW ON SEXUAL HARASSMENT The Victorian vintage provisions dealing with ―outraging the modesty‖ of a woman (Section 354 IPC) and ―insulting the modesty‖ of a woman (Section 509) are clearly out of date. The notion of regarding a woman in terms of her ―modesty‖ does not fit in with a world where she competes with men on equal terms. The Supreme Court sought to redress this anomaly in its landmark Vishakha verdict in 1997, when it laid down guidelines for dealing with sexual harassment at work place. This temporary measure, meant to be replaced by legislation, has proved ineffective as it depends on the responsibility of employers to create a remedial mechanism. So, one option before Parliament is to enact a special law on the lines of the court guidelines. Another option is to amend the Indian Penal Code as suggested by the Law Commission in 2000. The panel recommended replacing the ‗outraging the modesty‘ clause with one dealing with ―unlawful sexual contact‖, which would cover touching the body of any person other than one‘s spouse ―with sexual intent and without the consent‖ of such person. HIGHER PENALTY FOR MOLESTATION OF CHILDREN The Ruchika Girhotra case of last year has served to highlight a lacuna in the Indian law which, contrary to a progressive global trend, does not contain any special provision for child victims of sexual molestation. While there are special provisions in Section 376 IPC for child victims of rape, where the minimum punishment is 10 years jail as against the norm of seven years, Section 354 IPC, covering all forms of non-consensual contact other than rape, makes no such distinction between adult and child victims. Hence, the ―unlawful sexual contact‖ provision suggested by 77
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the Law Commission is designed to enhance the penalty for child abusers to seven years from the present level of two years for any molester. PENALISE CLIENTS OF PROSTITUTES The strict restrictions imposed by the Immoral Traffic (Prevention) Act on where and how prostitution could be practiced resulted in action being taken most of the time against the victims themselves. An amendment Bill introduced by the Manmohan Singh government in the earlier Lok Sabha in 2006 seemed to be a step in the right direction. But after it lapsed in 2009, with the dissolution of that Lok Sabha, UPA II has not so far revived the proposal of reforming the trafficking law. The reforms included deletion of the provisions that penalized prostitutes for soliciting clients. Instead, the 2006 Bill for the first time sought to punish any person visiting a brothel for the purpose of sexual exploitation of trafficked victims. The provision to penalize clients of prostitutes has, however, raised apprehensions that it could drive the flesh trade underground and thereby block legal channels of support to victims of trafficking.
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CONCLUSION AND SUGGESTIONS It is need less to point out that the whole legislative paradigm coupled with lack of judicial determination has exposed numerous flaws of the present legal system about the compensation therefore there is need for revamping the whole legal system once. The mandatory changes that are needed are as follows: The suggestion given by the law commission of India in its 42nd report on Indian Penal Code must be taken in to consideration and it would be better if the legislature also take in to account the separate note of Justice R.L. Narsimha a member of the commission. The law must also provide recording of reason for not providing or providing the compensation as we have in the case of death sentence in Cr.P.C. The law must also provide for institutional set up as we have in western countries. If possible it would be better to give the compensation as a right to victim. We however feel that victims of different crimes need compensation for rehabilitation, like victims of rape, a law should be enacted to set in place Criminal Injuries Compensation Boards at the Centre, State and District levels in our country. The Role of Judges, Prosecutors and Lawyers in Ensuring Justice for Victims of Crime and Human Rights Violations Whether a person is a victim of crime or human rights violations, this project has shown the essential role of judges, prosecutors and lawyers in responding effectively to the problems, needs and rights of the victim concerned. Members of the legal professions must not only be courteous and show understanding; they must also have a sound knowledge of human rights law and be prepared at all times to act impartially and independently in the pursuit of justice. Indeed, without an independent and impartial judiciary, as well as independent prosecutors and independent lawyers who are given the liberty to act promptly, vigorously and effectively in response to alleged human rights violations, human rights will largely remain a dead letter. It is for all States to grant the legal professions this independence and impartiality, and for the members of the legal professions to take the lead in enforcing human rights law by vigorously investigating and prosecuting acts that violate individual rights and freedoms. States‘ legal duty to prevent, protect, investigate, prosecute, punish and redress human rights violations has been given ample coverage in this chapter. Although there has been a tendency to focus on the right to life and the right to freedom from torture and other forms of ill-treatment and violence, the same obligations exist with regard to the whole spectrum of human rights. As rights are interdependent, their effective protection cannot be examined in isolation. Torture victims, for instance, must be able to speak freely in order to vindicate their rights and must enjoy respect for their correspondence in order to be able to communicate with legal counsel and 79
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so forth. This intrinsic relationship among rights becomes particularly relevant to the enjoyment in crisis situations of those rights that cannot be derogated from in any circumstances and others that can, in principle, be derogated from.
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BIBLIOGRAPHY Books Referred:
Indian Penal Code, K.D.Gaur, Universal Publication Indian Penal Code, Prof. S.N. Mishra, Allahabad Law Agency Constitution of India, Durga Dass Basu, Lexis nexus Butter Wadhwa. Indian Constitution, Dr. J.N. Pandey, Central Law Agency Crime Victim Compensation Q U A R T E R L Y, Issue #II 2011 Anti-human trafficking manual for criminal justice practitioners, Module 13,United Nation. Side Event Report ―Compensation of trafficked persons: Law and practice in the OSCE region‖ Human Dimension Implementation Meeting 1October 2009, Warsaw The Oxford Handbook of Criminology (1994 Edition) Labour and Industrial Law, S.N. Mishra, Central Law Agency
Law Journal, Magazine and Newspaper Referred:
All India Reporter Supreme court cases Judicial Interpretation of Crimes The Hindu The Times of India Hindustan Times
Websites Referred:
www.manupatra.com www.indiankanoon.org www.advocatekhoj.com www.un.org www2.ohchr.org www.theage.com www.naptip.gov www.osce.org
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