JONAKI Jun 2016

RESTRICT PORNOGRAPHY
TO COMBAT RAPE & TRAFFICKING
ONE STEP FORWARDA CONTROVERSY
COMBATING CHILD LABOUR
A LEGACY OF SHAMECOMBAT RAPE & TRAFFICKING THE REAL COST INCURRED
Jonaki
STREAMLINING PAYMENT OF WAGES FOR OBTAINING JUSTICE
June, 2016
Editorial
Chief Editor : Alok Goswami
CHILDREN OF BROEKN FAMILIES
Dear Reader,
The recent
judgement of
Calcutta High
Court,
awarding
compensation
to a victim of
trafficking
under the
provisions of
Section 357
Cr.P.C. had
been a
landmark.
This
precedence
shall facilitate
the prosecutors
in obtaining
some relief to a
survivor of
trafficking.
We welcome
such a great
move.
- Alok
Goswami
Address:
38B Mahanirban Road,
Kolkata - 700 029
Tel:
91-33-2464 9596,
2465 3429
Fax:
91-33-2465 3395
email:
[email protected]
Documentation Unit, Sanlaap
out as tears rolled down
his cheeks. In a corner; the
mother stood and wept
quietly.
“Why don't you come and
stay with mother? Can't
you tell the court that I
used to live with you and
still want to do so?” A
teary-eyed, six year old
told her father in Calcutta
high court. Seeing her cry,
her little brother also
began sobbing. “If she
stays with dad, I will also
go with her;” he blurted
This heart-rending family
drama left lawyers and
petitioners struggling for
words. The innocent
outburst had brought
them face to face with the
agony that children being
torn apart in custody
battles go through a pain
that is often drowned out
in legal arguments.
..."children being
torn apart in
custody battles go
through a pain
that is often
drowned out in
legal arguments"...
The two kids broke down
just after a division bench
of Justice Nishita Mhatre
and Justice Rakesh Tewari
gave interim custody to
their mother. Both parents
had moved high court for
custody.
The couple had met in
Siliguri in 2005 and
married after a whirlwind
affair. She was a Hindu
but embraced Islam and
changed her name. They
had a daughter in 2010
and a son in 2012. That
same year she began
suspecting her husband
and decided to leave
Siliguri with her children.
After failing to get either
1
his wife or the kids back, the
husband moved a Siliguri court
in February 2016 seeking
custody of the children. The wife
filed a counter-petition for
custody. In April, the court ruled
that the girl would stay with the
father and the boy with the
mother.
Though the mother was forced to
send her daughter back, she
challenged the order in Calcutta
high court. So did her husband,
..."The cries drew a
crowd of lawyers
and petitioners.
Within minutes, the
second-floor
corridor was chocka-block"...
who also wants custody of both
children. On May 17, Justice
Mhatre and Justice Tewari said
both children would stay with
the mother during the summer
vacation. When the case came
up for hearing after the court
reopened, the husband's lawyer
Udayan Dutta said that the
daughter had told her father that
she didn't like staying with her
mother. But the court said that
until further orders, the children
would continue to live with the
mother.
It was then that the kids posed the
questions to their father. Seeing
the children cry, the mother
began to weep. The cries drew a
crowd of lawyers and
petitioners. Within minutes, the
second-floor corridor was chocka-block. Fearing a reprimand
from the court for the chaos, the
police stepped in and dispersed
the crows. Even as a constable
urged the parents to move out, he
turned to the children and said
softly, “Let's go down for some
cold drinks,” The teary eyes
instantly lit up and the lips
quivered into a smile.
21
CHILDREN AS VICTIMS OF POLITICAL
MOVEMENTS
Documentation, Sanlaap
Several incarcerated women
members of Subhash Sena, who
had been arrested following the
Jawahar Bagh violence of June 2,
have claimed that 27 of their
children have been missing since
the clashes rocked Mathura.
Thrown into the Etah jail after the
Jawahar Bagh violence of June 2
between police and followers of
the Subhash Sena that killed 29,
..."women members
of the cult have told a
team of childline
officials who visited
them in prison that
there's no trace of 27
of their children"...
women members of the cult have
told a team of childline officials
who visited them in prison that
there's no trace of 27 of their
children 12 days after the clashes
rocked Mathura.
At present, 69 children are
lodged in the Etah jail along with
their mothers. Another five have
been declared orphans as their
parents are untraceable.
Word has now gone out to all the
adjoining districts and even
Delhi for information on the
whereabouts of the missing
children.
Child line's Firozabad director
Zafar Alam, who headed the fivemember counseling team that
met the Subhash Sena women in
jail, said, “Out of 27 missing
kids, 12 are boys and 15 girls.
All of them are in the age group
of 6-16 years. We feel sorry for
these mothers and children who
31
are lodged in the jail for no fault
of theirs. Most of them were lured
by Swadheen Bharat Subhash
Sena chief Ram Vriksha Yadav,
who promised them a better
future and freedom from poverty.
The report on the missing
children will be sent to the
Mathura district authorities.”
Alam added that the children in
the jail are traumatized “way
beyond people's imagination.”
..."the children
in the jail are
traumatized
“way beyond
people's
imagination"...
Gunshots, explosions and
devastation are only the things
they talk about, he said.
Etah jailor P K Singh said, “A total
of 96 women and 74 kids have
been lodged here. The inmates
and their kids are mainly facing
problems related to clothes.
However; we are trying to
provide them whatever we can.”
District child welfare committee
chairman Neera Chauhan, who
had accompanied the Childline
officials to the jail, said, “People
ran for cover after the clashes
started on June 2. In the melee,
many lost their children. So far
we have gathered information
about 27 missing children. Our
department along with Childline
is making all efforts to reunite
them”.
41
AN ENLIGHTENED WOMAN
Gender Desk, Sanlaap
Former Miss Afghanistan Vida
Samadzai has reached out to the
family of Judith D'Souza who
was abducted from Kabul on
June 9. Currently in Los Angeles,
Samadzai said that in the holy
month of Ramzan, she was
praying for Judith's safe return
home.
..."But his anger
was ignited from
personal views.
This had nothing
to do with his
religion or place
of origin"...
Afghanistan also has a connect to
the recent Orlando attack with
shooter Omar Mateen tracing his
origins to that country. Samadzai
says, “I understand Mateen is of
Afghan origin. But his anger was
ignited from personal views. This
had nothing to do with his
religion or place of origin.
As an ambassador of
Afghanistan, Samadzai said she
belonged to the “race where
people treat foreigners as God's
guest”. Three years ago,
she had come to Kolkata.
Though Samadzai didn't
know Judith personally,
she was aware of the
organisation that she was
working for; “Judith's goal
- woman and child
development - has been
similar to mine. The
organisation she has been
working for is involved in
reconstruction of the war
torn Afghanistan. They
were sent to help out and
51
who work for international
organizations and/or civilians.”
The recent Oriando shootout,
too, has affected her deeply. She
admitted to being a “bit unsafe”
in the US due to “many mentally
unstable people around”.
Describing Orlando shooter
Mateen's act as “spineless”, she
said, “When the US or other
countries agree to give the
foreign military forces more
access and ability to assist the
Afghan forces, of course the
opposition would do anything to
cause a stir. I wish that the forces
have full control so that such
cases can be avoided.”
they don't deserve this kind of a
behavior in return,” she said.
Samadzai, who was the first
Afghan woman to participate in
an international beauty pageant
since 1974, had raked up a
controversy by wearing a red
bikini in the 2003 edition of Miss
Earth pageant. Recalling the
recent abduction cases in
Afghanistan, she said, “It has
affected not only the foreign
workers but also local employees
..."She admitted to
being a “bit
unsafe” in the US
due to “many
mentally unstable
people around"...
Homophobia, she insists, is not
something that ought to be
tolerated this way, “We also have
people in Afghanistan with
various sexual preferences. If he
(Mateen) couldn't stand a certain
group, he could've managed to
live without interacting with
them. He could have lived a
happy life and let others do the
same. This is America. We are
known to have freedom and
stand by our rights. Harmful
and close minded people
should leave the country
instead of giving all the
trauma and heartache they
cause,” she said. But
Samadzai won't remain
unheard. “I'm a proud
Afghan. I'm from the race
where people would give
you their last bite, if they feel
you are hungry. I'm not afraid
of being an Afghan walking
around the world and I have
the right to express myself,”
she signed off.
61
INFANT MORTALITY RATE
Documentation Unit, Sanlaap
The steady decline in infant
deaths in Indian states appears to
be faltering in some while
progressing well in others,
according to fresh data for 2014
released by the Census office
based on an annual sample
survey.
Some of the more backward
states like Assam, Jharkhand and
Chhattisgarh did well in bringing
down infant deaths, but Gujarat,
Madhya Pradesh, Odisha,
Rajasthan and Uttarakhand
showed an alarming
slowdown.
..."Gujarat,
Madhya Pradesh,
Odisha, Rajasthan
and Uttarakhand
showed an
alarming
slowdown"...
Infant mortality
i s a k e y
measure of
people's health
and the health
delivery system's efficacy. Most
such deaths occur in the absence
of equipped delivery rooms and
doctors or when mother and
child are weak.
Oddly, for the first time,
information for all the states has
not been released in the annual
Sample Registration System
Bulletin. Out of the 36 states and
union territories, information for
only 23 has been put out. Left out
are all southern states and some
others like Maharashtra and
West Bengal.
Rohit Bharadwaj, deputy
registrar general, told that data
for all states is yet to come in,
ascribing the delay to
preoccupation with a baseline
survey released recently. This
71
latest Sample Registration
System (SRS) Bulletin for 2014
was due in December 2015 but
has been released six months
late.
Parsing the rural-urban and malefemale data confirms that there is
something going wrong in many
states. For instance, Rajasthan
and Bihar show an increase in
infant mortality in rural areas,
while Gujarat and Madhya
Pradesh show no change over
the previous year: Gujarat,
Jharkhand and Rajasthan show a
worrying increase in female
..."Gujarat,
Jharkhand and
Rajasthan show a
worrying increase
in female infant
mortality in rural
areas"...
infant mortality in rural areas.
In urban areas, Bihar and Gujarat
show increase in infant death
rates, while female infant deaths
increased in UP. This reflects the
growing share of population
which cannot afford access to
otherwise plentiful healthcare
facilities in India's cities and
towns.
Among the smaller states, infant
mortality has increased in
Manipur. In Meghalaya, female
infant mortality has increased.
Nagaland, Sikkim and Tripura
show healthy declines in infant
death rates.
Chandigarh has shown an
increase in infant deaths, driven
by a rise in female infant
mortality Delhi, also largely
urban, has shown a decline.
81
CALCUTTA HIGH COURT GRANTS
COMPENSATION FOR TRAFFICKED VICTIMS
Legal Cell, Sanlaap
A recent order by the Calcutta
High Court overturned the nongranting of compensation by the
Trial Court and, for the first time,
passed an order granting a
trafficking victim compensation
under section 357A Code of
Criminal Procedure (Cr.PC).
In addition, the Court granted the
entire fine amount imposed on
the convict in the judgment to
the victim as per section 357
Cr.P.C exercising its power of
revision. Hon'ble Justice Sankar
Acharyya stated in the judgment,
passed on 10.3.2016 that the
omission was “unwarranted
when the law suggests granting
of such compensation to the
victim” (Santana Das @ Santana
Bayen vs. The State of West
Bengal, CRR No 303 of 2014).
..."that the
omission was
“unwarranted
when the law
suggests granting of
such compensation
to the victim"...
11/12/2007, IJM has been active
in this case. Judgment was
passed on 16/8/2013 against her
trafficker; however, the trial
judge did not grant
compensation despite the fact
that one of the accused in the
case was convicted. The victim
girl approached IJM for
assistance in gaining
compensation, but, due to delays
it took more than two years after
the judgment for the order to be
passed.
Since police recued the victim
girl from sex trafficking on
91
The approach taken by the Court
is supported by case law. In
Abdul Rashid v. State of Odisha,
2014 (I) I.L.R CUT 202 (Orissa
High Court) the Court spoke on
this issue stating. “It follows that
unless Section 357 is read to
confer an obligation on Courts to
apply their mind to the question
of compensation, it would defeat
the very object behind the
introduction of the provision.”
Similarly, in Ankush Shivaji
Gaikwad vs. State of
Maharashtra, 2013 (4) ABR 648,
the judgment stated that “the
provision [Section 357] confers a
power coupled with a duty on
the Court to apply its mind on the
compensation of awarding
compensation in every case… if
the application of mind is not
considered mandatory, the entire
provision would be rendered a
dead letter.”
As far back as the 1980's, Justices
for the Court spoke out on victim
compensation; Krishna Iyer J. in
Maru Ram and Ors v. Union and
Ors 1 SCC 107 stated that
“victimology must find
fulfillment through the court, not
through barbarity … but by
lessening the loss of the forlorn.”
..."unless Section 357 is
read to confer an
obligation on Courts to
apply their mind to the
question of
compensation, it would
defeat the very object
behind the introduction
of the provision"...
Later, in 1988, it was
recommended that Section 357
of the Cr.P.C should be exercised
liberally, “so as to meet the ends
of justice in a better way” (Hari
Kishan v. Sukhbir Singh, A.I.R
1988 S.C 2127). The purpose of
this was to “reassure the victim
that he or she is not forgotten in
the criminal justice system”
(1988 S.C 2127). However, until
the enactment of the 2008
amendment of the Cr.P.C to
include Section 357A, the
lower courts exercised their
power sparingly and
compensation was rarely
awarded. While the
development of State
schemes took some time
since this Amendment, in
many States Compensation
Schemes have now been
established. In West Bengal
the scheme was created in
November 2012, and since
then the Court has
supported and promoted
victims' rights for
compensation in a number
of criminal trials.
The Supreme Court has also
been encouraging victim
compensation. In a judgment this
year in a case regarding rape and
sexual exploitation, the
judgment stated that “no amount
of money can restore the dignity
and confidence that the accused
took away from the victim. No
amount of money can erase the
trauma and grief the victim
suffers. This aid can be crucial
with the aftermath of crime.”
(Tekan vs. State of Madhya
Pradesh 2016 (2) SCALE 274).
This recent decision by the
Honorable High Court of
Calcutta is a significant step for
victims of trafficking,
encouraging victim
compensation to be sought, and
confirming the Court's power of
revision in cases where this has
not occurred.
Courtesy : Anti Human
Trafficking
Law Newsletter (IJM)
Vol 6 Issue 1 April 2016
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