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Madras High Court- The Director v State of Tamil Nadu, W.P.No.36807 of 2006, delivered on 31 October, 2006

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NATIONAL LEGAL RESEARCH DESK

In this case the writ petition was filed for issuance of mandamus to state authorities for:

  1. Inquiry about grievances of each and every one of the inmates of the homes ;
  2. Issuance of fresh rules under the ITPA;
  3. Constitution of special courts to deal with cases under the ITPA
  4. Provision of relief to victims by placing them in the hands of recognized NGOs for their reintegration with their families, otherwise rehabilitate them after their placement with appropriate organization
  5. Direction to various Protective and other similar homes for keeping victims and accused separately;
  6. Directions re personal attendance of all the inmates to find out all other reliefs possible to be granted to the victims;
  7. Directions for periodic inspection of the govt. protective homes and other homes

Here in a report dated 20.09.2006 submitted by Smt. S. Vimala, Director of the Tamil Nadu State Judicial Academy, based on her visit to the Government Vigilance Home (Arasinar Magalir Kappagam) situated at Mylapore, Chennai, was taken up as a suo motu writ petition.  It was discovered as per the report that four categories of the persons had been kept in the home, viz. victims of trafficking, accused/convicted persons under ITPA, women seeking voluntary admission and unwed mothers and their situation was pathetic out there. Further, the procedure as per the ITPA was not being followed and they were kept in continued detention without any enquiry or basis.

Hence, the High Court at first instance ordered two juveniles, one mother of a child to be sent to the willing NGOs, which had given a letter of undertaking to take their respective custody and for their treatment and rehabilitation.

Further, it gave various directions to the Police, Magistrates/Juvenile Justice Board/Legal Services Authority and State Government for proper action regarding disposal of such cases in appropriate manner and their rehabilitation and repatriation devoid of social stigma.

The High Court showed repent that even though State Level Co-ordination Committee had been constituted by the State of Tamil Nadu to combat trafficking and sexual exploitation of women and children it had not met till this matter was decided.

The High Court also directed for urgent repair of the Vigilance Home at Chennai including repair and renovation of the kitchen and toilets. It also directed the Member Secretary to take all necessary steps to co-ordinate with the State Legal Services Authority of Andhra Pradesh, Karnataka and Maharashtra in order to ensure the repatriation of the victims from these states to their respective States. It also ordered the State Legal Services Authority to provide free legal assistance to all the trafficked victims as well as their parents and guardians from the stage of rescue till their restoration and rehabilitation.

It stressed over the heinous crime of human trafficking and stated that:

“Para 8. It is highly deplorable and heartrending 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 canons of morality, decency and dignity of humankind. There has been an alarming increase in human trafficking not only in this country but also all over the world and today it is the third largest form of transnational illegal trade after arms and drugs. It is estimated that in India about 200 girls and women are either inducted into or enter the trade everyday and approximately, 75,000 girls and women enter the trade every year and 80% of them do it out of situational compulsions. Human trafficking is a multi-dimensional threat. It deprives people of their human rights and freedoms. It is a global health risk and it fuels the growth of organized crime. Human trafficking has a devastating impact on individual victims, who often suffer physical and emotional abuse, rape, and threats against self and family and even death. Child trafficking is the worst of all forms of trafficking. Many unfortunate teenage children are being sold in various parts of the country for paltry sums even by their parents finding themselves unable to maintain their children on account of poverty and unbearable miseries and hoping that the children would be engaged in household duties or manual labour. But those who are acting as pimps or brokers in the flesh trade and brothel keepers who hunt for these teenaged children and young girls to make money either purchase or kidnap them by deceitful means and unjustly and forcibly inveigle them into “flesh trade”. Once these unfortunate victims are taken to the dens of prostitutes and sold to brothel keepers, they are shockingly and brutally treated and confined in complete seclusion in a tiny claustrophobic room for several days without food until they succumb to the vicious desires of the brothel keepers and enter into the unethical and squalid business of prostitution.”

Further, it dealt with the rehabilitation, reintegration of the sexually abused and trafficked children.

 “18. The matter is one of great importance warranting a comprehensive and searching analysis and requiring a humanistic rather than a purely legalistic approach from different angles. In spite of the stringent and rehabilitative provisions of law under various Acts, it cannot be said that the desired result has been achieved. The most difficult task is to re-integrate the sexually abused children or trafficked children into their own families. Such families are reluctant to accept the victimized girl and regular visits by social worker and trained counsellor will be required for family counselling. The Social Welfare Department shall prepare a panel of social workers and trained counsellors for each District and the City of Chennai within a period of two months. Similarly, a panel of lawyers shall be nominated by the State Legal Services Authority for each District and the City of Chennai for visiting the Court and pursuing the individual cases in different Courts. Such lawyers will also assist the Public Prosecutor whenever necessary and will also get in touch with Police Investigating Officer concerned whenever required. It will help in quick delivery of justice and such lawyers can work as friends of the Court (amicus curiae).”

In Para 19 the High Court gave following directions to the concerned authorities:-

DIRECTIONS FOR POLICE:

Every rescued victim taken into custody at the time of search shall be produced before the legally competent authority within 24 hours.

The members of the official machinery who carry out the rescue operations shall not dispose of the rescued victims at their own discretion.

All victims, apparently or suspected to be minors, should be kept at a special home for juveniles in need of care and protection and must be produced before the competent authority within 24 hours.

A member of the competent authority constituted under the Juvenile Justice System shall be consulted by the Police Officer while deciding whether the rescued person should be brought before the Juvenile Justice System or before a Magistrate, depending upon the apparent age of the person.

Victims should be treated with compassion and respect for their dignity and have access to mechanisms of justice and prompt redress for the harm that they have suffered, as provided for by law.

Efforts must be made in assisting the victim to develop and keep contact with her child/children unless directed otherwise by any legally competent authority.

The members of the official machinery who carry out the rescue operations and the members of voluntary organisations who facilitate the rescue, shall take complete precaution to ensure that the facial and other identity of the rescued victim is not revealed to anyone except those who are legally competent to know the same.

Particular care shall be taken to protect the identity of the rescued victims from publicity through media and victims shall be protected against their being used by the media for its own commercial end.

It should be ensured that the victim is immediately taken to a certified place of safety after the raid.

The victim should never be kept overnight in the police station, except All Women Police Station.

It is to be ensured as far as possible that a social worker or a support person, preferably a female, is present when the girls are being interviewed by police officers after the rescue.

The services for socio-psychological well being shall start immediately.

On rescue or at the first helping, contact with the victims is necessary, which also includes counselling for therapeutic intervention. The list of psychological counsellors for each district shall be prepared by the Social Welfare Department within a period of two months from today.

Medical examination of all rescued victims and accused/other persons taken into custody by the police shall be conducted within 48 hours of rescue of a victim or arrest of the accused.

The rescued victims must be freely and unconditionally provided with professional, medical (physical and mental) assistance and professional counselling immediately after the rescue. The list of medical personnel for each district shall be prepared by the Social Welfare Department.

The rescued victims shall be freely and unconditionally provided with legal assistance by the Tamil Nadu State Legal Services Authority immediately after the rescue.

The age and other tests of the rescued victims should also be done as far as possible in the presence of child-supporting individuals and preferably within 48 hours from the rescue.

Questioning should be done mostly by women police officers.

The mental health aspects of the children have to be kept in mind.

There should not be too much pressure on the child to speak all the details of the traumatic incident.

Adopting a multi-disciplinary approach to the crime should be attempted by co-adopting additional members into the investigating team so as to include doctors, social workers, co-opting mental health experts, counsellors or anyone who would be useful in the overall rehabilitation of the child.

Investigation should necessarily be conducted into the trafficking angle in all cases of missing persons, procurement of minor girls, buying and selling, child marriages, and all cases of kidnapping and abduction.

The State and Police must focus on increasing the number of trafficking victims rescue and number of prosecutions and convictions of traffickers.

Separation of victims from offenders is necessary at the initial stage to avoid the dependency of the victims on offenders.

Access to victims must be under the supervision of the Child Welfare Committee or the Organisation or any other competent authority dealing with the issues of women and/or children. Child victims may be identified by the use of decoy customers. N.G.Os. and social workers must be involved in this regard.

Rescue operations to be more humanely and sensitively carried out along with a rehabilitation plan, protecting the human rights of the prostitutes.

Examination of the victim/witnesses should be in the presence of social workers/women police/parents or others who have the trust or confidence of the child.

Examinations should also be done in a victim-friendly atmosphere and not in police stations.

State and Police must focus on increasing the number of trafficking victims rescue and number of prosecutions and convictions of traffickers.

After rescue operation, the police authorities shall intimate the State Legal Services Authority as early as possible so that immediate legal aid may be provided.

DIRECTIONS FOR MAGISTRATES/JUVENILE JUSTICE BOARD/LEGAL SERVICES AUTHORITY:

The Magistrate/Juvenile Justice Board shall handle all cases involving sexual abuse of children within a stipulated time frame preferably within a period of six months.

On production of the rescued traffic victims, the concerned Magistrate/Board shall ensure that medical examination is conducted in order to check sexual abuse and/or rape.

The Magistrate/Board shall issue appropriate directions to conduct enquiry to find out who is the parent or guardian and whether they are responsible for the trafficking of the child and if need be, to appoint a guardian ad litem to protect the interests of the child.

The custody of the rescued child should not be handed over to parent/guardian without involving the Probation Officer/Social Worker and if necessary the Magistrate/Board may make an order for the child’s intermediate custody in a safe place.

If the child has objection to go back, the Magistrate/Board should try to determine the reasons for it and take a decision which will serve the best interest of the child rather than giving her custody to the claimers such as parents or relatives.

Trials of cases of trafficking should generally be In-Camera and the Magistrate/Board should avoid disclosing the name of the prosecutrix and their orders, to save embarrassment to the victim and anonymity of the victim of the crime should be maintained throughout.

While holding the trial of a child sex abuse or rape cases, the courts should ensure that –

 i. A screen or some such arrangements are made where the victim or witnesses (who may be equally vulnerable like the victim) do not see the body or face of the accused.

 ii. The victims of child abuse or rape cases, while giving testimony in court, should be allowed sufficient breaks as and when required.

 iii. The questions put in cross-examination on behalf of the accused, in so far as they relate directly to the incident, should be given in writing to the Presiding Officer of the Court, who may put them to the victim or witnesses in a language which is clear and is not embarrassing to her. Orders sending victims to Homes must be made with their consent after providing them legal representation and counselling.

The State Legal Services Authority shall form a Legal Aid Clinic in every vigilance home/shelter home, so that, if the victims need recourse to law, either under the criminal jurisprudence or under the civil jurisprudence, steps can be taken without delay. Judicial officers and Juvenile Board Members need to be sensitized on the issue of trafficking and sexual exploitation of children.

To prevent secondary victimization during interrogation/examination by investigating agencies as well as during court procedure, where a child is made to recall minute details of the sexual acts and experience, and is grilled for getting proof, a model code of conduct should be evolved. To check what offences have been committed against the trafficked victim.

To check who has committed these offences and whether they have been booked under appropriate sections of law; if not, direct the police to do so.

To check if the appropriate sections of IPC, ITP Act and Juvenile Justice Act against the traffickers have been stated in the Charge Sheet and refer the matter to the concerned Court.

Ensure that the evidence of the child is taken in-Camera, as per Section 327 of the CrPC and arrange for translators, if the child is from another State and does not speak the local language. Ensure that the Special Courts/Boards have a child-friendly and supportive atmosphere while taking the child’s evidence. Preferably, an elder woman who inspires the confidence of the child may be present.

 DIRECTIONS FOR STATE GOVERNMENT: –

 The State is directed to establish more shelter homes in all the districts at the district level. The shelter homes should have all basic amenities and the environment there should be clean, pollution free and well ventilated. Each home shall have facilities for periodical health checkups by the Government approved panel of doctors.

The needs of trafficked victims who are drug addicts or alcoholics must also be addressed. For this purpose, the help of a de-addiction expert must be obtained. The State Government must prepare a list of de-addiction centres across the State.

Every victim and their minor dependants shall be helped in every possible way to obtain formal education free of cost, which includes free supply of text books, uniforms, transport and scholarships to victims and their school going children. Where such education is not possible for certain unavoidable circumstances, as well as in addition to the formal education, life skills education shall be provided.

The State Government is directed to frame new schemes for training of the inmates of the Home and traffic victims in computers, languages and related fields. The rescued persons shall be equipped with the knowledge and skills appropriate to their attitude and orientation, so that their economic rehabilitation becomes easier.

The rescued person shall have the right to choose her own economic rehabilitation plan. Vocational training and guidance shall also be given to such rescued persons.

No rescued victim shall be sent back to the family without adequate assessment and without ensuring social acceptance and family support. State will ensure that rehabilitation is carried out depending on how safe and nurturing the family environment is for the victim.

Specialized centres of health shall be set up and maintained to cater to the needs of palliative care for the victims suffering from terminal states of HIV/AIDS. Specialized counselling shall be provided to victims of HIV/AIDS including pre-test, post-test and ongoing support.

Psycho-social interventions shall be conducted in a private and confidential setting and shall take into account the recipient’s language, culture, age, sex, ethnicity, class and religion.

Upon discharge from the Home, each victim shall be provided with her educational records, medical records, legal documents and other means such as savings and personal belongings. Daily allowance which is given for the inmates shall be increased from Rs.17.50 to Rs.20/- so as to facilitate variety in breakfast.

Police, B.S.F., B.D.R., Superintendents and Staff of Governments and non-government Home need to be oriented in Juvenile Justice, Rights of the child and on how to handle a child victim.

 Besides, specialists can provide the following assistance to victims:

 Information about available protections, especially against threats and intimidation, and available remedies;

Information about emergency medical and social services;Information about shelter options;
Referrals to public and private programmes available to provide couselling;
Information about a victims’ rights and his or her role in the criminal justice process;
General information about the status of an investigation and notice of important case events;
Information about how to apply for crime victim compensation through State compensation programmes;
Information about restitution; and
Information about the right to individual privacy and confidentiality issues.

 Creation of public awareness by generating public opinion and social pressure against trafficking and sexual exploitation of women and children:

A strategy has to be evolved by the Social Defence Department with the help of N.G.Os. The media, both electronic and print, may be deployed to achieve this end. An exercise of sensitization of police, judicial officers and other local bodies shall be undertaken by the Tamil Nadu State Judicial Academy and Police Training Academy.

An Accreditation Council shall be constituted, consisting of officers to be nominated by the Social Welfare Department in order to identify the genuine N.G.Os.

Databases:

A database may be created on traffickers, brothel owners, decoy customers, which will be kept confidential.

Concerted effort should be made to gather data relating to high risk areas, source points, transit centers and destination, since, it is because this data is absent that intervention strategies are not as effective. Community vigilant groups may be formed to help in the rescue and rehabilitation of victims at the community level. It is easier to rehabilitate a woman or a girl child at the initial stage, but once they have engaged themselves in prostitution for some time, rehabilitation becomes more difficult and the issues relating to such women must be dealt with at a different level. Improvement of inter-State co-ordiantion and sharing of information among the States may help reduce the incidence.

Documentation of each of the cases, developing a database on the individual victims and doing action research on the issues will help in handling these cases more scientifically and developing a policy on how to handle such cases efficiently.

Protective Homes u/ITPA:

The State should identify the Homes or such places of safe custody, to which victims of trafficking shall be sent, as per the provisions of Section 17 of the I.T.P. Act.

The State shall form a panel of five respectable persons in every District for the purpose of Section 17 of the I.T.P. Act . The State shall also draw proper rules for identifying such panel of five respectable persons under Section 17 of the I.T.P. Act. The Special Courts should be constituted to handle all cases involving sexual abuse of children within a stipulated time frame.

State Level Co-ordination Committee should also include Member Secretaries of State Legal Services Authority and N.G.Os and District Level Committees should also be formed consisting of Government and Police Officials, Member Secretaries of District Legal Services Authority, Doctors and N.G.Os to ensure implementation of I.T.P Act and to guarantee protection to the trafficked women and children.

Effective Prosecution:

Effective prosecution is the fulfillment of an important need of the victim of a crime and of the need to belong to a society that is based on principles of fairness and is devoid of arbitrariness.

Each home shall make efforts to facilitate prosecution so that the victim can enjoy a sense of justice. Care shall be taken to ensure that prosecution does not come in the way of or delay rehabilitation. Every technical administrative measure shall be exhausted to ensure that prosecution is speeded up and the presence and travel by the victims is minimized.

 Rehabilitation:

The rescued persons shall be equipped with the knowledge and skills appropriate to her attitude and orientation so that her economic rehabilitation becomes easier.

The members of the professional and (preferably) voluntary sector organizations who have had some helping interaction with the victim shall be represented in the process of rehabilitation. In case where women or child victims are from other States, the Department of Women and Child Development of the concerned States along with N.G.Os. would jointly and collaboratively take action to ensure proper shelter, travel arrangements, medical and psychological treatment and reintegration with humane treatment.

Government and local bodies would appropriately facilitate N.G.Os. to locate night shelters and Child Development or Care Centres in or near red light areas.

In cases where women and child victims are from foreign countries, a system of co-ordination through the Government of Indian and through inter-country N.G.O. networks would be set up so as to ensure safe passage, rehabilitation and reintegration in their community in their home countries. Womens organization should be involved in monitoring of remand, protective and other homes.

Local communities, N.G.Os., and other interested individuals would be mobilized and encouraged to be involved in identification, rescue and rehabilitation of women and child victims. All efforts should be made to persuade and motivate victims of trafficking and other forms of violence to be reintegrated and rehabilitated in society to lead a dignified life.

Outreach/support activities shall include counseling support visits to assist in counseling upon reintegration to the victims/family/relatives and local community people.

Every victim shall be gradually, systematically and professionally linked to a variety of support systems and given the skill and confidence to avail herself of these systems.

Positive intervention of the State may end with social reintegration. Thereafter the trafficked and rehabilitated person should be able, in case of need, to fall back on a support system established jointly by the government and voluntary sector organizations for that purpose.

Children rescued from streets should be located in a shelter home or in a protected place, away from red light areas in order to facilitate their rehabilitation.

Other Relevant Measures to be taken by the State:

The Government shall ensure that no birth of a child goes unregistered. There shall be a drive to achieve this goal and public awareness shall also be created to stress the importance of registration of births. Similarly, it should be ensured that all deaths are registered. This is to avoid non-registration of the deaths of girl children which results in the disappearance of women, spoken of by leading economists. Both NGOs and Social Welfare officers may be utilized to achieve this objective.

100% literacy among girl children should be made the immediate object of the State and for that, a program should be evolved. The provisions of the Tamil Nadu Compulsory Elementary Education Act, 1994 may be used to achieve this object.

Help Booths:

Establishment of Help Booths at Railway Stations and Bus Stands, since these are the vulnerable areas from where women and girl children who abandon their families to towns and cities due to multiple factors are often picked up.

Establishment of a Women Help Desk at each police station would help women victims to express their grievance freely.

Voluntary or involuntary uprooting from the known community has its inherent dangers and it renders the girl children and women more vulnerable to sexual exploitation. These Help Booths will help to identify such children and women and prevent them from being abused or exploited. Keep a close vigil on the activities of suspected anti-social elements and prevent their operation.

Be run by N.G.Os. with the assistance of the Police Department and function round the clock. The personnel manning these Help Booths should be sensitized before they are put up in charge of the Help Booths. The State shall set up a Criminal Compensation Injuries Board for awarding compensation to the victims.

The High Court also ordered the State Government, in consultation with the State Level Co-ordination Committee, to prepare a perspective policy note with regard to immoral trafficking, which ensures a coordinated, participatory, transparent, accountable approach and an integrative policy, and entrust the responsibilities across all branches of the Government.

The High Court further ordered the Member Secretary, Tamil Nadu State Legal Services Authority and the Director, Tamil Nadu State Judicial Academy to jointly conduct inspection of all the vigilance homes/shelter homes/rescue homes in the State and submit a report as to the infrastructure and facilities provided in the said homes, within a period of two months from the date of order.

MADRAS HIGH COURT : The Director vs State Of Tamil Nadu Rep.By The on 31 October,2006

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