Tuesday, August 21, 2018

TISS Report on Bihar institutions and The Issue of Mandatory Reporting

A part of my comments on the TISS report on social audit of welfare institutions in Bihar and the subsequent discussion thereupon has appeared today (21st Aug 2018) in the newspaper DNA. The comments that get published in a newspaper are bound to be edited owing to space constraints. I have never met Mr. Mohammed Tarique Qureishi before and have no malice against him whatsoever. I am also not demanding a trial or a punishment because I have my own reservations and opinions on ‘mandatory reporting’ which could not get expressed in the published story. I merely reacted to the points raised by the reporter primarily from an analytical angle. This note contains my detailed comments as an activist belonging to this field as they were conveyed to the newspaper.
The link to the DNA article is given here.

                                                                                   - Dr. Pravin Patkar
Protection of Children from Sexual Offences Act, 2012 (POCSOA) Chapter V Section 19 makes it abundantly clear that - any person who has any information on the offence of sexual abuse being committed on a child or likely to be committed must report this to the local or special juvenile police unit. This mandate is regardless of what is stated in the CrPC.
The responsibility for mandatory reporting is on all persons with no exceptions of the ‘professional communication’ between a priest, lawyer, and a psychiatrists or psychotherapist and their clients.

Chapter V: Procedure for Reporting of Cases
19. Reporting of offences. -
1.    "Notwithstanding anything contained in the Code of Criminal Procedure, 1973, any person (including the child), who has apprehension that an offence under this Act is likely to be committed or has knowledge that such an offence has been committed, he shall provide such information to, -
a.     the Special Juvenile Police Unit, or
b.    the local police.

Chapter V: Procedure for Reporting of Cases
21. Punishment for failure to report or record a case. -
1.     Any person, who fails to report the commission of an offence under sub-section (1) of section 19 or section 20 or who fails to record such offence under sub-section (2) of section 19 shall be punished with imprisonment of either description which may extend to six months or with fine or with both.
2.     Any person, being in-charge of any company or an institution (by whatever name called) who fails to report the commission of an offence under sub-section (1) of section 19 in respect of a subordinate under his control, shall be punished with imprisonment for a term which may extend to one year and with fine.

The provision has been made because in authoritarian set ups like a family or a Children’s Home where the children are heavily dependent upon and under the control of the persons in authority the crime gets unnoticed and unreported, the child gets silenced and continues to get sexually offended. These children urgently require medical and psychiatric intervention besides protection. That is an important spirit behind the provision of mandatory reporting in POCSOA.

POCSOA Section 19(5) places the responsibility on the police to - make immediate arrangement to give the child such care and protection (including admitting the child into shelter home or to the nearest hospital) within twenty-four hours of the report. The police have to report the matter to the Child Welfare Committee in 24 hours.

Hence a person who fails to report to the police is punishable by imprisonment up to 6 months and the person in charge of the company or institution who fails to report the commission of an offence by a subordinate under his control is punishable with imprisonment up to 1 year. Does that mean every person who gets to know about an offence or is under the apprehension that an offence under POCSOA has happened must rush to the police to report regardless of the matter having been already reported to the police?

Going by the text of POCSOA the answer is ‘Yes’ although in State of Maharashtra vs Dashrath Lahanu Kadu, the Bombay High Court has settled the matter by quoting CrPC and stating that the provision requiring reporting of commission of an offence to police is procedural provision to set criminal law in motion and held as under: -

“19. …..... As we have indicated, the events in this case clearly show that the information had actually reached the Police Station ………………. Once the information is reached…… Every eyewitness or every person who is in the know of the circumstances relating to an offence is not further expected to go to the Police Station so as to give a report of what he saw. Section 44 has been designed with a purpose to secure information relating to the commission of an offence with all expedition so that investigation should ensue.”

Unfortunately, the opening words of Sec 19(1) POCSOA override CrPC and thus the confusion continues.
POCSOA Sec. 22 penalizes false reporting while POCSOA Sec 19(7) protects the person who reports from any liability, whether civil or criminal, for giving the information in good faith for the purpose of sub-section (1),

Non reporting is likely to be defended on certain grounds which are common as given below;
In the case of TISS and the said Report these excuses have a different meaning.
a)    ‘Why single me out when so many other agencies are committing the same offence of not reporting? 
This is an unacceptable defence. TISS particularly has a much higher technical and ethical duty responsibility to know its responsibilities under the law and to follow the law as it is funded, entrusted with research and training responsibilities as the expert. There are legitimate means of sorting out one’s differences with the law.  Not following the law is not one of them.
b)    “I wasn’t sure if it had really happened. I am not an investigating agency”
This once again indicates poor knowledge about the law. Everyone knows who the investigation agencies are. They are supposed to take over once the matter is reported or once it gets to know of the incident. This defence is counterproductive and discredits the report itself and strengthens the defence of those Home authorities accused of mismanagement.

Criminal investigation is not the only or most important purpose of mandatory reporting. It is to ensure that the child subjected to such offences gets removed from that situation and is given protection, care and support including immediate medical help and counselling. By not reporting one keeps the child in the same situation without any help. That is unacceptable!

One must not forget that the research reports by a high-profile institution are naively taken as scientific and rigorously verified facts and enjoy considerable although uncritical acceptance.
If the claim on scientific rigour is maintained then the culpability becomes even more stronger as it is not ‘just an uncritically recorded hearsay’ but an observation that has been sufficiently verified and hence reached a higher level to the category of “Knowledge” or even higher than that of “Reasonable belief”.

If the institution defends itself by abandoning the claim on “Reasonable Belief” to its observations and conclusions then the very credibility of this and many other so-called scientific research reports would become questionable.
The objections to the propriety of mandatory reporting is a different story altogether. As a practical approach many child rights activists hold that every mandatory reporting should not drag the child and his primary support systems to a police station and courts although it must result in an urgent act of reaching out to the child and extending protection, care and support.

There is a need for change in the law to introduce a mechanism something on the grounds of a multidisciplinary professional team that comes into the picture immediately after mandatory reporting, examines the incidence and decides the propriety of criminal investigation with due respect to the best interest and rights of the child and that becomes binding on the police.
Regardless of the differences over it the fact is that the legal provision is in force and applying it selectively will amount to arbitrariness and inequality before the law. Giving the benefit of ignorance will be a gross disaster as TISS is supposed to be full of ‘experts’ and ‘researchers’.

The provision of mandatory reporting is yet another example of the trend to come up with poorly discussed and sloppily drafted legislation.
Dr. Pravin Patkar

Monday, March 5, 2018

Sanitizing the Human Trafficking Terminologies

I was on my way to Rambhau Mhalgi Prabodhini, Uttan village in Bhayander, when I saw the board ‘अनैतिक मानवी वाहतूक प्रतिबंधक कक्ष’ (Anti Human Trafficking Cell). As the car was in motion, I had a fleeting glance of the board; it left me enthralled. I decided to take a photograph on my way back, which I did.

I had just finished a training session on human trafficking for a group of 30 youthful political activists from across India as a part of their 9-month long training program. The session started by analyzing the common regional terms for human trafficking such as Manav Taskari, meaning theft or smuggling of humans; it is not the same as human trafficking. From among the various colloquial terms available for trafficking, after considerable thinking and discussions, I had chosen the Marathi term ‘Vahatuk’(वाहतूक). Over time, I had defended the term fiercely on various platforms.

The Prerana Anti-Trafficking Center (Prerana ATC) was the first civil society organization in India to conduct sensitization and training for police officials on human trafficking. At that time, even the Home Ministry or Police Commissionerates hadn’t ventured into conducting such trainings. Of these, the maximum number of sensitization and training programs were organized in Mumbai’s neighboring Thane district. I also recall that Prabodhini had organized a training program for the elected representatives of the nearby municipal corporations and councils. A young and dynamic police officer Ms. Archana Tyagi,  the Deputy Commissioner of Police, Mumbai, had been transferred as the Superintendent of Police Thane rural. Having observed our training programs, she immediately lined up some for the rural police.

As a key member of an organization working so deeply in the field of Human Trafficking at policy level, and as an academician, I have always been keen on conceptual clarity and sanitization of terms. In my opinion, these are very important steps in building a movement against any social problem. Terms represent reality, hence wrong terms misrepresent reality. Thus, the diagnosis, treatment and outcome are not what is expected.

In this light, the Prerana ATC team stressed on using ‘Manavi Vahatuk’ as a Marathi term for human trafficking. So, when I saw the board using this term in an official light, we were happy that it found its place in the administrative language.

At Prerana, we consistently strive to refine the terms. An example for this is when we introduced the term Commercial Sexual Exploitation to better represent Prostitution. The first national policy on child trafficking released by Govt. of India in 1998 introduced this term in its very opening page. That was a reflection of our success.    

Yet another term to find its place in mainstream usage was ‘Post Rescue Operation’ (PRO). We were the first to use PRO for referring to the gamut of required interventions for rescue. The Prerana ATC was also the first to introduce the term VOCSET (Victims of Commercial Sexual Exploitation & Trafficking) as a replacement for ‘prostitute’. It changed the approach of how the government and change makers viewed prostituted women.  

Our network members worked hard to use VOCSET despite an aggressive opposition by the organizations promoting the term ‘Sex Work’. Today, many state governments use VOCSET.
We also introduced the term ‘prostituted women’ as a substitution to the referent ‘prostitute women’ as the two represented contradicting realities.

At Prerana, we understand the need for breaking myths and misrepresentations around human trafficking. Our fighttrafficking.org resource portal is a crucial step in this direction. Additionally, we are on our way to create a dictionary of sanitized terms appropriate for usage in the Anti-Human Trafficking space with the intention to demystify human trafficking.

About Author
Dr. Pravin Patkar, Co-Founder & Director of Prerana (India’s leading and pioneering anti-trafficking civil society organization), Retired Faculty TISS, Ex. Professor-Amrita University, ex Vice Chairperson ECPAT International, and Fulbright Scholar (Fulbright Nehru Academic and Professional Excellence Fellow 2015-2016, in residence at University of Rhode Island, USA).

Thursday, December 7, 2017

Examining the Proposal of Introducing Sexual Offenders’ Registry/Notification System for India

Following years have witnessed the resurfacing of an old demand for a nationwide Sex Offenders Registry.

What should concern us here is the fact that experience and research on the existing systems abroad prove that the SOR has little utility in curbing sexual offences or making the social environment safe for children. On the other hand, as a total package it is a hugely counterproductive, draconian and regressive measure that shall convert the stray sexual offender into a habitual criminal for whom crime is the only career left.

It is imperative that before our Government pays a serious heed to the demand for a Sexual Offenders' Registry, we should also take a look at all the reasons why it is NOT a good idea!