PUCL Bulletin, July 2002

Tamil Nadu:
People's public hearing on all forms of torture, degrading treatment, and sexual abuse of children

Excerpts from interim verdict of the jury panel

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This public hearing on all forms of Torture, Degrading Treatment and Sexual Abuse of Children organised in Chennai on 27'h March 2002, springs from this urgent consciousness and is geared to conscientisation of the community to end this perennial, pernicious praxis. While child abuse is escalating, law notwithstanding, the focus must turn on torture and sex abuse. Here is the most macabre malevolence of sex torture and murder to obliterate evidence of the horrendous crime.

Survivors cry in shame, fatal victims leave their parents to tell the tale in tears of the missing children and dead bodies as posthumous testimony of the killer- crime. The horror of this scenario must rouse the rage of court and community, and even the obsolescent law of evidence must yield to the discovery, trial and punishment of the terrible paedo-murder increase. Ventilation of these distressing situations is a necessary process to tell the country, the government, the Human Rights Commissions and the police about this 'most unkindest cut of all-the indifference to the foulest offence against humanity viz sex torture and heartless termination of the victim.
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19 organisations who Jointly organised this People's Public Hearing invited us to be Jury members for this Public Hearing organised at The Auditorium, World University Centre, 18, V.R. Ramanathan Salai. Chetput. Chennai - 600 031. This became very necessary due to the escalation of violence against children in Tamil Nadu and their inability/families inability to gain justice for child victims of torture, degrading treatment and sexual abuse/rape. This Public Hearing with the support of families and organisations involved children, parents, relatives and social activists deposing with facts about each case.
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In summary we state below the agonising details of some of the cases that were deposed before us:
a) Sexual abuse, rape and forced prostitution:
A total of 9 cases where let in as evidence under this category. The first was the case of P. Jayanthi now aged 22 years narrating incidents of her being trafficked for forced prostitution at the age of 14 in the years 1994 from Pattabiram in Chennai to Mumbai, Hyderabad and Gulbarga. Her long saga ended up with a FIR due to the consistent pressure of the legal aid association for women of the AIDWA. Jayanthi was followed by a series of minors - Manjula (aged 8 years) of Pallivaramangalam, Nageswari @ Rajeswari (aged 15 years at the time of incident) of Virudhunagar district, Babu Sindhu (aged 15 years) of Theni district, M. Ponnarasi (aged 13 years and 5 months) of Virudhunagar district, B. Subi (aged 18 years) of Tiruvarur district, R. Jeevanandam, Father of Kalai Jothi (aged 9 years) of Nagapattinam district and finally Deepa (aged 15 years at the time of incident) from Kancheepuram district.

All minor girls who have been raped on tender ages and in most cases with no worthwhile legal action that follows. In one of the cases, the victim has been ordered to pay Rs.20,000/- for a DNA test by the court. In yet another case, the women police station refrained from registering a case when a minor girl had been raped and got her married to the perpetrator. It was the same Inspector of the women police station who ultimately enquired the victim's petition to the Chief Minister's cell!

b) Child murder torture and corporal punishment on schools:
A total number of 3 cases have been produced before the Jury panel under this category. The first is the case of P. Jegadeesan (aged 16 years) of Karur district who was caned by his teacher made to kneel down in the corridor and walk four rounds on his knees led him to commit suicide by hanging the same day in his grand parents' house due to the shame that he had been put to. The second was the case of S. Mohan (aged 15 years) of Tiruvarur district, who was charged with steeling Rs. 320/- taken into toilet and battered. Subsequently the watchman of the school and another poured kerosene on him and set him fire. Mohan died due to severe fire injuries after 22 days of treatment. The third is the case of C. Ramesh (aged 17 years) of Ariyalur district, a hostel student who witnessed the sexual activities of his warden with the school Head Master. He was found hanging in the class room with bruises on his face. Thus these three cases are ample evidence to the brutal corpora! punishment the thousands of students undergo day in and day out in the various schools of Tamil Nadu largely unrecorded.

c) Victims of female infanticide:
Female infanticide is permanent in Tamil Nadu. Of the 2568 reported cases Dharmapuri in the years 2000, only 16 cases have been brought to book. This practice has spread from 5 districts to 13 districts. From one community it has percolated to several others. It is in this background that the Jury heard three victims - Selvi Sathya. Manimegalai and Thangamari all from Dharmapuri district in two related cases that had been filed. The victims deposing brought to the consciences of the Jury, their plight as children of parents who had been arrested in a family where a variety of reactions had followed the case of murder registered against their parents. The most arbitrary nature of the arrests in one of the cases was that of Mrs. Chinnapappa, the elder sister of Rani (accused in the alleged killing of the new born baby) who was not at all at the place of occurrence but has been included as co- accused only to teach her a lesson for the questions she raised to the police who were arresting her sister Rani. These were examples pointing out how girl children of the victimised family are facing new forms of torture and abuse by the state, their community and also their family members. State by punishing the mothers is doubly victimising her.

d) Caste discrimination:
The Jury panel was presented by four cases dealing with caste discrimination and the heinous crime of untouchability. One case from the Usilampatty taluk of Madurai district witnessed two boys aged 10 and 9 years, provided evidence to the practice of untouchability in the school slating that Dalit students are provided separate vessels and tumblers and Dalit children are not even allowed walk with chappals in the Balwadies. Two other cases namely, that of K. Meena (aged 17 years) of Ariyalur district and Mariammal (aged 10 years) of Sivagangai district were the cases of rape and murder.

The case Meena is an incident that took place on 3'd March 2002, a day before her 12'h standard examinations when she was raped and murdered. Although the case has been registered under the SC/ST (Prevention of Atrocities) Act, the statutory compensation is yet to be paid. In the case of Mariammal, the SC/ST (PA) Act has It not yet been included in the FIR. The fourth case of Hemalatha (aged 6 years) from Coimbatore is a recorded case of sexual assault of a Dalit girl whose parents were driven out of the village since they dared to complain to the police. The family had to be housed in Madurai due to the threat to their lives in spite of complaints to 'the District Superintendent of Police and the Secretary to the Government.

The caste discrimination and the practice of untouchability have been declared to fall within the definition of racial discrimination in Art. 1 of the UN Convention on Elimination of Racial Discrimination. The continuous practice of this caste based discrimination in the form of untouchability squarely falls within the definition of torture.

e) Trafficked and bonded child labour
The Jury was presented with 5 cases of trafficked bonded labourers. They were D. Kesavaraj @ Karthik, aged 17 years of Namakkal district, Anand of Nellay district, M. Sadiq Basha of Erode, Arun of Thoothukudi district representing 32 released bonded labourers most of whom are children and Mohamed Sheik Farid aged 11 years of Nagercoil. In each of the cases they were presented to the Jury panel the child bonded labourers have all complained of extensive torture in their place of employment. While D. Kesavaraj of Namakkal refers to his employment in Karnataka, Arun refers to his employment in Maharashtra. In the case of Arun it was presented that they were all beaten and suffered serious injuries which were duly photographed and authenticated by medical reports issued at the Government Thoothukudi Medical College Hospital.

Violence against children in Tamil Nadu (all persons under 18), both girls and boys, encompasses all forms of physical & mental violence, injury or abuse, neglect or negligent treatment by the State and includes, inter alia, sexual abuse, trafficking, economic exploitation, corporal punishment in schools, etc.
Violence is perpetrated against children in both and public and private custody among relatives and in the neighbourhood, detention centers, juvenile homes, schools and religious institutions by educators, employers and state officials especially the police of all kinds.

The State is the biggest perpetration of violence against children both through acts of commission and willful negligence. Structural causes of violence against children including the denial of social, economic and cultural rights, which is exacerbated by globalization and resulting increased poverty and inequality.
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There is an urgent need to bring forth a bill of right to preserve and protect victims' rights, justice and due process. A victim should refer to a person against whom a criminal offence has been committed or if the person is killed or incapacitated the person's immediate family other than a lawful representative.

Such a bill of rights should include the following:
o To be treated with fairness, respect, and dignity, and to be free from intimidation, harassment, or abuse, throughout the criminal justice process.

o To be informed, upon request, when the accused or convicted person is released from custody or has escaped.

o To be present at and, upon request, to be informed of all criminal proceedings where the accused has the right to be present.

o To be heard at the time of the granting of bail to the accused and sentencing.

o To confer with the prosecution, after the crime against the victim has been charged, before a criminal court.

o To receive prompt restitution from the person or persons convicted of the criminal conduct that caused the victim's loss or injury.

o To be heard at any proceeding when any post-conviction bail from judicial custody is being considered by a competent court of law.

o To a speedy trial and prompt and final conclusion of the case after the conviction and sentence.

o To frame rules governing criminal procedure and the admissibility of evidence in all criminal proceedings protect victims' rights.

o To be informed of victims' constitutional rights.

The areas of rights that should included in any codification of victims' rights in criminal proceedings should cover the following areas:

o If a victim is physically or emotionally unable to exercise any rights, he should be able to designate a lawful representative to exercise his /her rights. Similarly if a victim is incompetent, deceased or otherwise incapable of designating a representative, the Court may appoint a lawful representative, if the victim is a minor or a vulnerable adult, the victims' parents or other immediate family member any exercise all of the victims' rights on behalf of the victim.

o Certain information shall be provided to a victim by the law enforcement agency as soon as after the registration of a criminal offence against the accused. The law enforcement agency investigating the criminal offence shall provide the victim a multi-copy form which allows the victim to request or waive applicable rights and which provides the victim a method to designate a lawful representative and finally provides notice to the victim.

o The realisation of victims' rights requires a new class of Lawyers namely a Criminal Victim Advocate. A Criminal Victim Advocate should be employed either by Legal Services Authority or any non-government organisation to provide counselling, treatment or other supportive assistance to victims of crimes.

o During the course of investigation, the victim should be give a copy of the FIR, statement of witnesses, and all other documents and provided an opportunity before the filing of the final report (Charge sheet) to give his/her version on the evidence to be placed by the prosecution in the Court.

o A victim shall be entitled to pre-trial notice so that the victim is aware of the commencement of the criminal proceedings. This pre-trial notice shall be provided to the victim by the Public Prosecutor in charge of the case.

o The victim shall have the right to be present throughout all criminal proceedings in which the accused has the right to be present. He/she also has the right to be heard at the Initial appearance at the trial court of the accused and be entitled to a copy of all documents that the accused has access to.

o A victim has a right to leave work so as to be present at a criminal proceedings. Therefore, no employer may dismiss an employee who is a victim of a crime because the employee exercise this right to leave work.

o Before the conclusion of a criminal proceedings (after the finding of the accused being guilty and before the questioning under Sec. 313 Cr.P.C.) the victim shall have right to present a victim impact statement. This victim impact statement shall contain an explanation of the nature and extent of any physical, psychological or emotional harm or trauma suffered by the victim and the extent of any economic loss or property damage suffered by the victim. An opinion of the need for an extent of restitution and details of whether the victim has applied for or received any compensation for the loss or damage.

o The victim shall be entitled to monetary compensation in a case of conviction 'from a " child victim relief fund" and the state could recover the amount dispersed to the victim from the proceeds /earnings of the convict in prison.

o A victim shall be provided proper notice of discharge conviction or acquittal orders in any criminal proceedings. Such notice shall be provided by the office of the Public Prosecutor within 15 days of the conviction or acquittal or discharge of the charge against the accused.

o The victim and his/her family shall be provided security/protection throughout.

o The victim shall be notified of the release of the accused from custody or if the accused has escaped from the custodial agency where he/she was lodged.

o The victim shall be provided adequate notice of any appellate proceedings against accused.
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o No child shall be subject to any form of sexual abuse torture or cruel or other inhuman degrading treatment or punishment and the state shall take all the necessary steps in this behalf, forthwith.

o Child-labour in all forms, domestic or otherwise hazardous or non-hazardous shall stand prohibited.

o We need urgently, imperatively, a legislation for child justice, a burgeoning branch of victimology with special emphasis on and sensitive to particularised aspects of child abuse. We must urge social activists, humanist NGOs, statesman, politicians, jurists, the Bar and the Bench to give shape to victimological jurisprudence to combat crimes against tender age, as it is a shock and shame to any society to let its innocent generation be tormented with impunity and callous immunity.

o The Government should enact a comprehensive legislation for child justice incorporating the rights of the child in the Constitution, UNCRC and the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment.

o Amend and incorporate into the criminal procedure code, provisions for protecting victim's rights in continuance with justice and due process, particularly relating to rehabilitation and compensation, as more particularly indicated elsewhere in this report.

In the meanwhile, we urge upon the Government of Tamil Nadu to take the following social measures on an urgent basis:
1. Identify and recognise the areas, both geographically and materially, particularly in relation to classes of people who are poor and economically and socially backward, where children have been systematically tortured and sexually abused.

2. Take prompt and efficient steps to give protection to such children and provide all support systems to the parents of the children so as to enable them to over come the present suffering, and

3. Take all preventive measures to see that children are not driven into further exploitation due to neglect and indifference.

o All these steps are to be taken a promptly, effectively and with the maximum man-power available by various processes: such as expediting cases which are pending, inquiring into lapses on the part of the administration, if any, by giving support to such agencies like the Child welfare Committees, or the Juvenile Justice Board under Juvenile Justice Act 2001, and also activating the social defence structures, and giving aid to NGO's and Human Rights groups and activists.

o That child rights, women's rights groups and human rights defenders seriously study the Law Commission of India Recommendations to review of rape laws made in its 172"d report in March 2000 recommending changes to Section 375, 376 and 377 IPC, modification of Section 114A of Evidence Act and a proposed Section 53A to the Evidence Act.

o We recommend that the law of rape should include a punishment for any one who either directly or indirectly commits any act connected with the offence of rape including inducement to the women raped with the objective of preventing her to withdraw from the investigation of trial of the offence of rape or organising or participating in any procession, rally, protest, strike, fast or any other act in relation to the commission to the offence of rape with a view of obstructing with a proper investigation of trial of the offence or attributing motive of age, religion, caste, community or class or any of them in the commission of offence.

o That the concept of victims' rights be incorporated in the criminal justice system so as to preserve and protect the rights of victims. Such a bill of rights catering exclusively to victims should include the rights to be informed, right to participate, right to have his/her safety considered the right to be monetarily compensated and the right to be treated with respect and dignity. Such a concept of victims' rights therefore require a new class of lawyers namely, a Criminal Victim Advocate employed either by the Central/State Legal Services Authority or non-Governmental organisation.

o The Government of India be called upon to immediately ratify without any delay whatsoever the Convention against torture.

o The National Human Rights Commission of India should appoint a Special Rapporteur on violence against children in order to solicit, receive and exchange information on any form of violence or ill-treatment met to children. Similar attempts at concerning itself on sexual abuse of children should be initiated by the National Commission for Women.

o A special cell within the law enforcing machinery to be set up to safeguard child rights, take cognisance of violations and violence against children.

o Sensitization programmes to be conducted for critical groups by all the govt departments concerned with children, women, welfare, law enforcement, SC/STs and others.

o A special commission for children at the Centre and in all states with more powers than presently given to other statutory commissions must be established with a district role for children in the commission.

o The District Advisory Committees for Crimes against Women, presently existing in Tamil Nadu, could be reconstituted, with representation for active child right organisations, and renamed District Advisory Committees on Crimes against Women and Children and given an enlarged mandate to take up crimes against children including preventive aspects.

o In each one of the wards of the cities, Gram Panchayats and Town Panchayat of the districts there must a child rights protection committees consisting of representatives of local government, NGO leaders and individuals who are known for their Public reputation, integrity and service to the public cause and concern for the freedom of individuals to report on all forms of abuses of children and harassment's to the weaker sections in general to the concerned authorities for immediate action. Equal representation must be given to women, weaker sections including dalits and different religious groups in the Constitution of such committees.

o Within a period of one month government must take effective steps to rehabilitate the children who are affected by any kind of abuse. The accused must also be punished within a reasonable period of time and the child abuser made public.

o Make F.I.R.s/Post mortem certificates/charge sheets etc, public documents to be made available on payment of a nominal fee.

o Scene of occurrence and the victims (showing their wounds if any) should be mandatory photographed - photos are to be provided to the victims.

o Victims/NGOs should also step in and take photos - (there are instances where the scene of occurrence is wrongly depicted - even the visible wounds not taken note of in the accident register/postmortem certificate- this would help to show the exact scene of occurrence and also the visible wounds on the body of the victim.

o There should be a ban on cremating the bodies of victims who have not died a natural death/bodies submitted to post-mortem too should not be allowed to be cremated- they should mandatorily be buried.

o Victims have rarely any protection in the present scenario, more so in the case of children. In many cases we found that the victims' families had to flee their residence to other paces fearing reprisal by the accused. In such circumstances, the Police should protect the victim and not the accused. If the reverse happens, the Government should take a serious view of it and take action against the erring policemen.

o In case of rape or death of the victim, monetary relief must be given in the shortest possible time. A legal time-frame must be fixed.

o The state's ultimate responsibility for the protection of human rights must be ensured regardless of who the accused are.

o In the case of sexual abuse of girl children, court verdict must be time-bound, preferably not more than six months.

o All children subjected to sexual abuse should be provided counseling services by the State.

o The right to life is the foremost human right. It begins with the right to be born which, today, is denied. If the potential babe is of the girl gender, foeticide is inhumanity and gender outrage. Likewise, infanticide, when the innocent new born is of the female gender is also intolerable inhumanity. These must be banished by a total ban and punitive severity. Womanhood, from womb to tomb, from cradle to cremation, is sacred and the law must render them basic justice. Never shall woman, whatever her age or stage, suffer because of gender accident. Female infanticide should not be seen as a criminal offence but seen as a social offence and a separate law should be framed for this.

o A fund called Child Victim Relief Fund must be created by the government and the victims be paid compensation - like a sum given in case of motor accidents - (no fault liability). The State could recover the said sum from the perpetrators of the crime later.

o All forms of torture and abuse of children in children's homes under the Juvenile Justice Act should be stopped and offenders punished. It should be the task of the State to create awareness about the provisions of Juvenile Justice Act including definition of child male or female as 18 years. No child should be detained - handcuffed or arrested like an adult or dealt with provisions of criminal justice meant for adults. For the effective implementation Juvenile Justice Act formation of JWB with suitable persons must be immediately in Tamil Nadu.

o It should be the responsibility of the State to sensitise all persons in public or private institution on child rights and the doctrine of best interests of children.

o Child line or Child Protection Centres to be established in each district and located in child rights - friendly NGO's on call for 24 hours and linked to such NGO's or child rights activists in each block Child Line or child protection centres to be widely publicised in all schools and communities.

o Provision of short stay homes for abused children for boys and girls with special care facilities including psychiatric care.

o Harassment of children by teachers and management and corporal punishments should be wholly abolished. The use of canes/scales in any class and in all schools should be stopped immediately. Even the presence of scales on the table of the teachers frightens children. Schools wherein any student dies/subjected to any torture/or schools which meet out corporal punishment should be taken over by the State and its assets seized and confiscated by the government.

o In view of school children being abused by school staff resulting in suicides and killings, it is imperative to appoint trained student counsellors in all schools who also function as child rights defenders.

o In a number of cases reported the abuse had occurred in the school premises and by school authorities. Department of School Education should be mandated to intervene whenever such instances are brought to its notice, initiating legal action against culprits, and counseling and rehabilitating affected children. Administrative action should also be initiated against culprits.

o A mechanism to express their grievances on torture and sexual abuses and have them redressed should be available to students within and outside the school. The State Human Rights Commission must create a mechanism to monitor torture in schools and allow for children who are abused to depose before the Commission.

o Getting a school transfer certificate - which should be a fairly simple matter - is a Herculean task for poor children who have had to shift residence after an incidence of violence or abuse. Inability to get this certificate has meant the end of education for many children. School authorities should be more sensitive to this issue and not be bureaucratic and rigid. Officials erring in this should face disciplinary action.

o Admission of students coming to the area on displacement due to slum clearance, fire, etc and other causes must be given a first priority. Since most abuse takes place within laboratories, special classes, outside school hours and on holidays and while taking team? to play outside their place, special preventive measures are to be taken to avoid any abuse. Headmasters should be physically resent in the school when girl students are in the campus and should be personally liable for their safety.
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-- Justice H. Suresh, Former Judge, Mumbai High Court; Dr. N. Markandan, Former Vice Chancellor; V. Karuppan, Convenor, Dalit Struggle Committee; Dr. V. Vasanthi Devi, Former Vice Chancellor and Chairperson, TNSCW; Dr. S. S. Rajagopalan, Deucation Consultant; Ms. Mythili Sivaraman, National Vice-President - AIDWA; Ms. Andal Damodaran, General Secretary, ICCW- TN; Ms. Sudha Ramalingam, Member, National Council PUCL

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