1. Legal aid
An independent competent legal counsel for each of the survivors is extremely crucial in improving survivor’s access to compensation. In Tafteesh, experienced lawyers who have shown the following characteristics have successfully resulted VC orders in favour of the survivors:
- (i) A lawyer who is well versed with the VC scheme.
- (ii) Draft quality applications with computations mentioned based on the right violations after reviewing documents as well as consulting survivors.
- (iii) Has good coordination with the social workers and survivors.
- (iv) Present the case during hearings and keep the team updated.
- (v) Use reference from judgments by Apex court regarding method of calculating the amount of Victim compensation to ensure maximum compensation to the survivor and apply the principle of beneficial legislation.
- (vi) Challenges non accountability of any system players and take up legal measures to counter the same.
2. Evidence collation and use of documents
- (i) The documents that are to be annexed are first listed down as per the narrative of the case
- (ii) A screening takes place of what is available and what is not
- (iii) For documents which are not available, a process is initiated to collect it- for e.g. if mental health test reports are not there but is required to prove claims of trauma
3. Right to appeal
In VC processes DLSA will tend to reject applications and put the burden of proof onto survivors, and try to create maximum standards of satisfactions. In Tafteesh therefore the lawyers diligently appeal to SLSA against DLSA rejections followed by writs in High Courts. The role and effectiveness of vertical escalation of cases has been instrumental. In each of the instances, survivors needed support from a local NGO, a private lawyer practicing in High Court or sessions’ court. This collaborating method of assisting survivors helped to escalate cases from the DLSA, to SLSA to High Court on issues rejections, lesser amount of VC grants before SLSA and courts for reinforcing survivors right to entitlements as their fundamental rights.
4. Compensations proportional to injury
The method of computation was devised with reference to other preceding orders and VC schemes of other states for similar crimes and experience of exploitation of victims both in the category of an adult or a child. This was done in order to maximize the claim amount based on the background and need of the victim using a legal framework. The computation amount was calculated by adding up the compensation amounts for each of the offenses committed against the client – for example, if a survivor has been trafficked, her computation was just not restricted to only rehabilitation head. Instead, heads under rape, physical injusry, mental injury (if documents are there) etc were also included.
5. Using key judgements from HCs in India
Cross fertilise high court judgements between states to argue for maximum compensation and apply the principle of beneficial legislation. Some of the supportive orders and schemes regularly used are:
- 1. Judgement of hon’ble Supreme Court in Suresh Vs state of Haryana, 2015
- 2. Judgement of hon’ble Supreme Court in Ankush Shivaji Gaikwad Vs state of Maharashtra, 2013
- 3. Judgement of hon’ble Supreme Court in Shri Bodhisattwa Gautam Vs. Miss Subhra Chakraborty, 1995
- 4. Judgement of hon’ble Supreme Court in Nipun Saxena Vs. Union of India, 2012
6. Centrality in survivors’ decisions
Consultation with the survivors before drafting and keeping her informed and prepared throughout the process has been a key to the success of the victim compensation.Survivors’ participation in decision making regarding their cases, and not just as a mere witnesses is crucial. Once they understand the importance of VC they take up the responsibility of following up on their social workers and connecting them to lawyers. Their role is not limited to just being a receiver but also an equal actor.
7. Compensations integral in rehabilitation services
Compensation for victims of trafficking is key factor in combating human trafficking because it has 3 direct impacts -
- (a) Improving rehabilitation of survivors: The VC money enables survivors to make a better choice for their living: they are able to access mainstream services and fulfill their dreams of purchasing land to build their own house or starting a business.
- (b) Building survivors’ trust in the criminal justice system and thereby collaborating with law enforcement agencies and prosecution system in criminal trials against traffickers
- (c) Becoming empowered leaders of change in their communities to initiate prevention action.
8. NGOs’ accountability to provide information and services to claim for compensation
There is a need to provide support and encouragement to more NGOs to provide legal aid to survivors of trafficking to apply for victim compensation. The lawyers need to be trained and given collaterals on how to apply the scheme for survivors, how to collate evidence and make assertive applications. NGOs need to be trained on how to build participation and confidence in survivors to apply for compensation. When the survivor is residing at any shelter home post rescue, as the custodian, the shelter home administration must facilitate her access to the victim compensation scheme, and make available appropriate legal aid services for collecting necessary documents and filing of such application.At the community level, post-reunification, NGOs/ social workers linking survivors with lawyers who can apply for their victim compensation.
9. Financiers to invest in legal aid for survivors
Tafteesh has seen how quality of legal aid has helped in survivor’s access to justice and improving their confidence, trust and recovery. This has been possible since there were financers who invested in this.
Given the low number of applications across majority of the states in India, more and more financers need to invest in legal aid for survivors. Their investment will help in the following manners:
- 1. Access to compensations will increased dramatically
- 2. DLSA lawyers' capacities will be improved
- 3. Investigation of cases will improved leading to stronger prosecutions
- 4. Survivors will be able to defend themselves against traffickers, report threats, abuse and violence
- 5. Prosecution of traffickers will improved
- 6. There will be Increase in number of traffickers being arrested and denied bail
- 7. Survivors interest in claiming services, challenging negligence or corruption will have significant impact of their confidence, trust and recovery
10. SLSA to support DLSA’s capacities in making compensations accessible to survivors of trafficking:
As more and more survivors of human trafficking will access legal aid through DLSA lawyers, it is important that SLSA takes stock of the present gaps in DLSA lawyer’s capacities to assist survivors with quality legal aid and conduct regular trainings with them to improve their capacities in dealing with cases of human trafficking. This will ensure quality legal aid to survivors, including Victim compensation applications which are strong in content as well the compensation amount.