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The untold trial of victim compensation: Human trafficking survivors in India continue to be denied rights and treated with apathy

Kolkata:  The National Crime Records Bureau (NCRB) reports put the total number of cases of human trafficking at 35,983 between 2011 and 2018. Responses obtained through RTI queries from 25 states and seven Union Territories (UTs) emphasises that between March 2011 and April 2019 only 82 such victims were awarded compensation. This means, only 0.2% of all survivors of human trafficking received the compensation announced by the government during this timeline.

However, the above doesn’t indicate that India lacks sufficient policy on paper to provide compensation to victims of human trafficking.

A new Section 357-A was inserted in the Code of Criminal Procedure, 1973, through the Code of Criminal Procedure (Amendment) Act, 2008, which provides compensation to victims of crime. Section 357-A mandates every state government/Us in coordination with the central government to frame a Victim Compensation Scheme (VCS). The Government of India is responsible for overseeing the notification and implementation of the Victim Compensation Scheme (VCS) in the respective states/UTs. The Code of Criminal Procedure further designates responsibilities to the jurisdictional District Legal Services Authority (DLSA) or State Legal Services Authority (SLSA) to decide the quantum of compensation payable in different cases.

Furthermore, with the evolving discourse on victim compensation, the Central Victim Compensation Fund scheme was introduced in 2015, granting ₹200 crore to state governments to support victims of gender-based violence, including rape, acid attack. This was further strengthened through the National Legal Services Authority’s (NALSA) Compensation Scheme for women victims/survivors of sexual assault/other crimes, 2018.

“However, I have rarely seen any human trafficking survivor receiving this fund; this indicates a glaring gap in having a policy on paper and its last-mile delivery,” says Bengaluru-based Pallabi Ghosh, an anti-trafficking activist, who has rescued more than 10,000 human trafficking victims from across India, from underground tunnels and hidden almirah cupboards, among others.

Kolkata-based Nisha Mehroon, programme associate, Sanjog India, elaborates, “This legislation has been poorly implemented resulting in more that 90% of survivors not having received any compensation from the state. On the other hand, the unutilised funds granted under the scheme by the central government to the state governments resulted in decreasing allocation of budgets under the scheme that was meant for survivors of human trafficking.”

Ghosh, who is the founder of Impact and Dialogue Foundation, an organisation that works towards rescue and rehabilitation of trafficking survivors and at-risk populations of modern slavery, says, “There are several schemes allocated by the government but, in reality, there are multiple barriers in applying for those, especially as a vast majority of the survivors come from low-income, vulnerable rural households in remote parts of the country. Furthermore, the entire documentation process is so cumbersome that it takes a toll on their mental health.”

The compensation is not commensurate with the degree and repercussions of the loss and damage; it hardly empowers a survivor to take the next steps in life once they are rescued. Several survivors have started challenging the sum awarded for victim compensation.

Who is a survivor

Ghosh asks, “Who is a survivor? Typically, a survivor is less likely to be well-versed in English; for instance, think of someone who knows only Bengali or someone who has studied only till Class VI, someone who doesn’t know the pros and cons of law, such a person has depend on a lawyer to navigate the boundaries of language as well as to ensure that they take the right approach while applying for victim compensation.”

Mehroon elaborates, “Across all Indian states, the system and the structure of victim compensation is yet to be fully operational and active. The unwillingness to respond to the RTI queries across states suggests a complete reluctance on the part of the government machinery to address grievances and award compensations. The gap in data and the lack of responsiveness across a range of queries further reinforces the weakness in the administration and execution of the scheme.”

Mehroon has worked on the 2020 report titled ‘Uncompensate Victims,’ as one of the members of the Principal Research Team: Design, Data Collection, Analysis, and Reporting at Sanjog. This national report, which tracks the status of victim compensation to survivors of human trafficking in India was produced by Tafteesh, a consortium programme working on access to justice for survivors of human trafficking.

Furthermore, anti-trafficking NGOs have not invested enough in making victim compensation accessible to survivors of trafficking. The neglect of this scheme by NGOs, who provide rehabilitation services, Mehroon suggests, is primarily because of a lack of their capacity and resources to hire legal services from competent lawyers. However, it also indicates these organisations being entrenched in traditional and custodial approaches of rehabilitation instead of a rights-based approach, she adds.

Poor execution, lack of survivor-centric lens, vicious cycle of apathy and neglect

Mehroon says that poor rehabilitation services for survivors of human trafficking has been a persistent problem in the country resulting in the perpetuation of vicious cycles of poverty, illnesses, stigma, violence, threats and incidents of re-trafficking and death of women and men even after they escape from traffickers.

West Bengal-based Soma Sarkar, who has been working with Barasat Unnoyan Prostuti for the last 14 years mobilising rehabilitation of human trafficking survivors across the North 24 Paragans, highlights a critical loophole in the victim compensation scheme and how it lacks a survivor-centric lens. “As per mandate a survivor isn’t eligible to receive the complete sum of compensation at one go as a fixed deposit of 10 years needs to be created with 75% of the sum. What good is it to the survivor who needs the compensation at the present time; why do they have to wait for something that is their right?” says Sarkar. Several survivors have started raising their voice, questioning this paternalistic approach of the government.

Mehroon says that the lack of implementation of the scheme indicates a failure of planning, execution, and monitoring by the National Legal Services Authority, which houses the scheme, as well as a lack of monitoring by concerned departments, including the Ministry of Women and Child Welfare, the Ministry of Home or the Ministry of Social Justice, and the Empowerment at the centre, alongside the concerned departments in the different states.

“This apathy and neglect is sustained by a lack of demand and bottom-up pressure from survivors of human trafficking, who are deprived from their entitlements because they are not informed about the scheme or assisted to apply for it by NGOs, the District Legal Services Authorities, or any other agency who is responsible for the welfare and rehabilitation of survivors of human trafficking (including children). The failure to recognise and act upon the grave injustice that children and youth are subjected to owing to the prevalence of human trafficking indicates the State’s failure to protect vulnerable people from servitude, bondage, and exploitation,” says Mehroon of Sanjog, the Kolkata-based technical resource organisation working towards combating violence against women and children. Sanjog joined Tafteesh to strengthen national law and policy on human trafficking .
Victim compensation through the lens of stigma, trauma and disenfranchisement 

Kolkata-based Pompi Banerjee, a queer-affirmative psychologist, human rights activist, and policy researcher, says, “While it is true that societal stigma against survivors or internalised shame and fear of societal stigma and trauma of survivors often act as barriers in applying for and availing victim compensation, systemic barriers including conscious and unconscious biases across all layers and levels of stakeholders is the chief concern.”

Banerjee, who also worked as one of the members of the Principal Research Team: Design, Data Collection, Analysis, and Reporting at Sanjog on the 2020 report titled ‘Uncompensate Victims,’ further informs that ‘stigma’ shouldn’t be perceived to be merely related to sex and sexuality; there’s a deep-rooted stigma against migration. This impacts those trafficked for labour, resulting in disenfranchised victims who are unable to lodge an FIR, and are often coerced to opt for an out-of-court settlement with a sub-par compensation amount which doesn’t cover all the outstanding wage claims. Often such victims migrate from situations of extreme deprivation at home with abuse being so normalised that they fail to recognise or acknowledge patterns of exploitation and abuse in the workplace and environment where they are trafficked into.

Caste, class, and religion continue to be the biggest intersectional barriers, while  the lack of information and lack of survivor assistance render the process of navigating victim compensation overwhelming, distressful and dehumanising. “How are the disenfranchised survivors who are rescued from an oppressive trafficked situation supposed to be aware of victim compensation schemes if no one informs them. Furthermore, the language of the law is incomprehensible for most, which makes the interventions of civil society organisations, NGOs and lawyers critical,” says Banerjee.

“The absence of a transparent and structured procedure for application makes it cumbersome for the survivors, especially for those without legal expertise. Prolonged prosecution and court trials deter survivors from pursuing justice, with some fearing further victimisation. Bureaucratic delays in inquiry, sharing of information by police to DLSA, processing of applications, and disbursing funds leave victims in financial distress, defeating the purpose of compensation,” says Jaya Singh, Head of Programme Operations, CRY (North).

Several inform that there is no particular recourse in law to provide survivors with pre-legal aid. NGOs appoint lawyers to represent survivors. However, it has often been observed that the lawyers empanelled with DLSA and SLSA navigate a multitude of cases simultaneously, and they hardly have the requisite time and capacity to devote the necessary attention to the survivor. Sometimes, DLSA lawyers exhibit a lack of interest or refuse to take the case citing the delay in payment by the authorities, shares Sarkar drawing from her experience of assisting survivors in availing free legal aid for victim compensation and procedural correction in Barasat.

The anti-trafficking movement has its roots in the intervention programme around AIDS in the 1990s, and historically the survivors of trafficking haven’t seen any leadership roles in the movement. Which is why Banerjee points out that the movement against trafficking positions survivors of human trafficking as largely “passive service recipients,” , while acknowledging that there has been some advancements made in leadership mobilisation led by survivors. Case in point, when over 2,500 survivors of human trafficking came together to form the Indian Leadership Forum Against Trafficking (ILFAT) in 2019.

Supiya Khatun, a human trafficking survivor leader working with Utthan, a group of peer leaders of the collective of survivors of human trafficking residing in North and South 24 Parganas in West Bengal district recalls a time when several survivors like her had to sit mum; there was hardly any access to information or the confidence to speak up. A strong sense of fear would grip them, leaving survivors already dealing with trauma in a further vulnerable position and completely at the mercy of external agents of help.

Khatun says that “bastob e prochur lorai korte hoyeche (in reality, it’s been a tough battle),” describing the process of the collective fight for justice. Utthan focuses on youth adult partnership, building resilience and self-esteem, sensitising about gender, sexuality and violence, and empowering survivors to learn the evolving differences between charity-based and rights-based models of development work. The collective helps community members with loans, provides mental health support, takes initiatives to counsel family and community members to combat stigma once survivors return home, and the like, to build a future.

Looking ahead

All agree that since presently the law doesn’t hold any authority accountable the road to justice remains a distant dream.

Khatun recalls a time when the local police authorities or the on-duty medical officer would intimidate survivors to withdraw the victim compensation application so as to avoid the criminal prosecution procedure. At other times the survivor would find the statement produced during trial to be an altered version of what they had said. Although with greater assistance towards survivors, things are improving, Khatun demands that local police stations should immediately transfer the investigation of cases of ‘missing’ persons to Anti-Human Trafficking Units.

“Tafteesh employs escalation as a tool to hold the authorities accountable at every stage. The core problem has been the long drawn-out trial, where a victim has to pass through several rites of passage over repeated hearings and a course of several years. Tafteesh  supports survivors in escalating their compensation claims from the DLSA to SLSA and the high court, which is a huge step forward although a lot needs to be done,” says Sarkar.

“Victims of commercial sexual exploitation are often misidentified as criminals, leading to detention or prosecution instead of rehabilitation. Lack of specialised medical and psychological care affect the recovery process of the victims of sexual exploitation. On the other hand, complex legal processes and insufficient legal support hinder justice-seeking by minor survivors. This is only exacerbated by a sheer lack of awareness among professionals and the public about trafficking signs, further  hinders timely responses,” says Jaya Singh of CRY (North), shedding light on some of the gaps in the institutional framework. She adds that these gaps not only impact the recovery of minor girls but also perpetuate their vulnerability to exploitation, endangering their physical and psychological well-being

At present, the government machinery doesn’t prioritise victim compensation; it requires to be pushed and pressurised to act. Mehroon believes that a surge in the number of applications from all across India along with strong advocacy for increasing prosecutions and prevention efforts might help attract attention of the central and state governments to the dire state of affairs and build government in the long run. Government will is important as funds too need to be increased to meet the demands of the rising numbers of applications.

“Moreover, there needs to be laws that uphold survivors’ right to holistic justice and recovery rather than laws only focusing on punishing the perpetrator. The focus has to shift to survivors, and authorities must listen to their voices. Going forward, there is a growing consensus among stakeholders in the government to recognise human trafficking as an organised crime, which has the potential to make the case for victim compensation and rehabilitation stronger and more effective,” concludes Banerjee.

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