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Safeguards for Victim Compensation Scheme: An Analysis

Crime takes an enormous physical, financial and emotional toll on its victims. On November 29, 1985, the General Assembly of the United Nations adopted the Declaration of Basic Principles of Justice for Victims of Crime & Abuse of Power (General Assembly Resolution 40/34) based on the conviction that victims should be treated with compassion and respect for their dignity and that they are entitled to prompt redress for the harm that they have suffered, through access to the Criminal Justice System, reparation and services to assist their recovery.

The Declaration recommends measures to be taken on behalf of victims of crime at the international, regional and national levels to improve access to justice and fair treatment, restitution, compensation and assistance. It also outlines the main steps to be taken to prevent victimization linked to abuse of power and to provide remedies for the victims.

In May 1996, the United Nations Commission on Crime Prevention and Criminal Justice, at its Fifth Session, adopted a resolution to develop a Manual or Manuals on the Use & Application of the Declaration (Economic & Social Council Resolution 1996/14). The Handbook on Justice for Victims was developed in response to that Resolution.

A brief Guide for Policymakers has also been developed to highlight programmes and policies that have been put into effect in various jurisdictions to implement the Declaration and to ensure that the effectiveness and fairness of criminal justice, including related forms of support, are enhanced in such a way that the fundamental rights of victims of crime and abuse of power are respected.

In the Declaration “victims” are defined in the broad sense as persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are violations of national criminal laws or of internationally recognized norms relating to human rights.

The experiences of many countries around the world have shown that one effective way to address the many needs of crime victims is to establish programmes that provide social, psychological, emotional and financial support, and effectively help victims within criminal justice and social institutions. The Criminal Justice System is often seen as a zero-sum game.

Someone loses, someone wins. The accused seeks acquittal and the State, which represents the victim, seeks conviction.

Unfortunately, in this cacophonous process, the victim is often times treated as an afterthought. This may have been the impetus for the controversially constituted 'Committee for Reforms in Criminal Law' to have suggested the introduction of a 'Victim Impact Statement' before the sentencing stage in a trial.

'Victim Impact Statement' was initially introduced in the United States. The same was upheld as constitutional post [Payne Vs Tennessee, 501 US 808 (1991)] by the US Supreme Court. Since then, other jurisdictions such as Canada, the United Kingdom, New Zealand and Australia have adopted it as well. While the implementation of 'Victim Impact Statement' differs from jurisdiction to jurisdiction, broadly, a Victim Impact Statement is a process whereby the victim, who has so far been a witness in a criminal trial, can be heard by the Court, either through a written or an oral statement. The aforementioned statement of the victim allows the Court to understand the long-term consequences of the crime on her.

It can include psychological trauma suffered due to an attack and serves as a subjective assessment of the effect that trauma has had on her day-to-day life and relationships. More importantly, it undoubtedly plays an important role in humanising the victim. 'Victim Impact Statement' thus allows the Court to comprehend the entire gamut of ramifications of the crime on the victim. The Courts can then increase the sentence on the accused based on the 'Victim Impact Statement'. As a matter of principle, objections to 'Victim Impact Statement' are few and far between and there exists a broad-based understanding that courtroom procedures need to be friendlier to the victim.

Though many jurisdictions have embraced the Victim Impact Statement, there are mounting criticisms of the process. The principal criticism is that 'Victim Impact Statement' can lead to disparate and discriminatory sentencing. Conversely, it gives the victims a false sense of influence over the quantum of punishment. This leads to a loss of faith in the system if these expectations are not met.

Thus, increased jail sentences based on a Victim Impact Statement do not help the victim and there are tangible harms which emanate from pitting the victim's rights against that of the accused in this context.

Take the example of two victims of a random armed robbery. The first victim has pre-existing anxiety and goes into a shock due to the robbery – however, the second victim does not. The mental health of the first victim post the attack severely deteriorates, ruining her career prospects and personal relationships.

The second victim, on the other hand, is able to cope with the attack and its aftermath, without any overt changes to her life. Under a 'Victim Impact Statement' paradigm, the convict in the first instance will receive a harsher punishment, even though he committed the same crime, as his victim will have severely damning 'Victim Impact Statement'. Nevertheless, it is inherently unfair to increase the punishment of a convict based on the coping mechanism of his victim.

Moreover, a harsher punishment will not help that victim to overcome her mental health problems, which were a direct effect of the attack. This is a gaping lacuna in the current justice system. Historically, the state did not bear the responsibility of victim rehabilitation. Higher punishment for the accused was the only solace that the state provided. Research, however, shows that most victims want repair not revenge and an increased jail sentence does not solve the problem of victim rehabilitation.

Alternatively, it will be myopic to throw the baby out with the bathwater because of these criticisms. Research from Canada shows that a majority of those victims who took part in 'Victim Impact Statement' were more satisfied with the criminal process and it helped them receive closure. This was especially true in cases where the crime was of a serious nature, as therein victims could confront their attackers.

Victim support in India
In India, the right of a victim of receive compensation was recognized under the old Code (Code of Criminal Procedure, 1898) as well but available only where a substantive sentence of fine was imposed and limited to the amount of fine actually realized. However, this provision was sparingly invoked. Subsequently, the right was read as a part of the fundamental right under Art 21 of Constitution of India.

As the clamour for victims' rights gained momentum, keeping in mind the broad principles enumerated in the 1985 Declaration, a statutory scheme of compensation payable by the State was enacted. Section 357-A was inserted in the Code of Criminal Procedure, 1973, henceforth Cr. P. C., obligating the States to provide for compensation to victims out of the Victim Compensation Fund created for the purpose.

Compensation to Victims
The Constitution of India, the Supreme law of the land, enunciates no specific provision for victims. However, Part IV, Directive Principle of State Policy, Art 41 and Part V, Fundamental Duties, Art 51-A lay down the duty of the State to secure “the right to public assistance in cases of disablement and in other cases of undeserved want” and to “have compassion for living creatures” and “to develop humanism” respectively.

The right to compensation has also been interpreted as an integral part of right to life and liberty under Art. 21 of Constitution of India. As early as in 1983, the Supreme Court recognized the Petitioner's right to claim compensation for illegal detention and awarded a total sum of Rs. 35, 000/- by way of compensation. In delivering the Judgment, Chandrachud C. J. observed [RudulSah Vs. State of Bihar & Anr., AIR 1983 SC 1086]:
Art 21 which guarantees the right to life and liberty will be denuded of its significant content if the power of this Court were limited to passing orders of relief from illegal detention. One of the telling ways in which the violation of that right can reasonably be prevented and due compliance with the mandate of Art 21 secured is to mullet its violators in the payment of monetary compensation.

In several cases thereafter, the Apex Court has repeated its order, making compensation an integral aspect of right to life [Bhim Singh Vs State of Jammu & Kashmir & Ors., (1985) 4 SCC 677]; [Dr. Jacob George Vs State of Kerala, 1994 SCC (3) 430]; [Manju Bhatia Vs N.D.M.C. AIR 1998 SC 223, 1998]; [Paschim Bangal Khet Mazdoor Samity & Ors. Vs State of West Bengal & Anr., 1996 SCC (4) 37]; [People's Union for Democratic Rights Thru. Its Secy. Vs Police Commissioner, Delhi Police Headquarters, (1989) 4 SCC 730]; [People's Union for Democratic Rights Vs State of Bihar & Ors., 1987 AIR 1987 SC 355].

Besides, there are provisions in a number of legislations for payment of compensation to the victim, either by the trial court or by specially set up Claims Tribunal (Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985; Consumer Protection Act, 1986; Fatal Accidents Act, 1855; Indian Airlines Non International Carriage (Passenger & Baggage) Regulations, 1980; Indian Railways Act, 1989; Merchant Shipping Act, 1958; Motor Vehicles Act, 1988; Probation of Offenders Act, 1958; Protection of Women from Domestic Violence Act, 2005; Sexual Harassment (Prevention, Protection & Redressal) Act, 2013). Thus, under the Probation of Offenders Act, 1958 while releasing an accused on probation or admonition, the Court may order the offender to pay compensation and cost to the victim under Section 5 of the Act.

Similarly, Section 250 (Compensation for accusation without reasonable cause), Section 357 (order to pay compensation out of fine or even without a sentence of fine), Section 358 (Compensation up to Rs. 100/- to persons groundlessly arrested) and Section 359 (Order to pay cost in non-cognizable cases) of the Cr. P. Code, 1973, provide for payment of compensation and costs to the victims of crime under different circumstances.

Section 357 Cr. P. C. 1973, specifically empowers a Court imposing a sentence of fine or a sentence (including a sentence of death) of which fine forms a part, in its discretion, inter alia, to order payment of compensation, out of the fine recovered, to a person for any loss or injury caused to him by the offence. However, such compensation to victims can be awarded only when substantive sentence is imposed, of which fine forms a part, and not in cases of acquittal.

Under section 357 (3) Cr. P. C. 1973, however, the Court is empowered to award compensation for loss or injury suffered by a person, even in cases where the fine does not form a part of the sentence. In other words, the power to award compensation is not ancillary to other sentence, but it is in addition thereto [Balraj Vs State of Utter Paresh, 1994 SCC (4) 29].

There is also no limit to the amount that may be awarded and is left entirely to the discretion of the Court to decide in each case depending on the facts and circumstances of the case. In [Rohtash @ Pappu Vs State of Haryana, 2008), the Court raised an apt question:
“Should justice to the victims depend only on the punishment of the guilty? Should the victims have to wait to get justice till such time that the handicaps in the system which result in large scale acquittals of guilty, are removed?..”.

Responding that the need to address cry of victims of crime is paramount and separate from the issue of punishment of the offender, the Court held that:
The victims have right to get justice, to remedy the harm suffered as a result of crime. This right is different from and independent of the right to retribution, responsibility of which has been assumed by the state in a society governed by Rule of Law. But if the state fails in discharging this responsibility, the state must still provide a mechanism to ensure that the victim's right to be compensated for his injury is not ignored or defeated (Dr. Jacob George v. State of Kerala, 1994).

In spite of this, there has been a general reluctance on the part of Courts to exercise the power under Section 357 to the benefit of the victims [Hari Singh Vs Sukhbir Singh & Ors., (1988) 4 SCC 55]. Somehow, the Courts have limited themselves to award of sentences with no mention of adequate compensation, thereby denying victims the basic right.

More than three decades back, Hon'ble Mr. Justice Krishna Iyer stated that while social responsibility of the criminal to restore the loss or heal the injury is a part of the punitive exercise, the length of the prison term is no reparation to the crippled or bereaved but is futility compounded with cruelty and victimology must find fulfilment not through barbarity but by compulsory recoupment by the wrongdoer of the damage inflicted not by giving more pain to the offender but by lessening the loss of the forlorn [Maru Ram Vs Union of India & Anr., (1981) 1 SCC 107]. Even the Apex Court in 2014 reiterated that:
It appears to us that the provision confers a duty on the Courts to apply its mind to the question of awarding compensation in every criminal case. …the power to award compensation was intended to reassure the victim that he or she is not forgotten in the Criminal Justice System [Ankush Shivaji Gaikwad Vs State of Maharashtr, (2013) 6 SCC 770].

Moreover, the Supreme Court of India too has recognised the lack of victim support in [Mallikarjun Kodagil Vs State of Karnataka, (2019) 2 SCC 752]. The Court noted the importance of a Victim Impact Statement to ensure that an appropriate punishment is meted out onto the accused. Pertinently, the Court observed that a victim, depending on her specific circumstances, may need a support mechanism, so that she can be rehabilitated. This is where that a 'Victim Impact Statement' can be a game-changer.

India, up until recently, has not had a uniform Victim Compensation Policy.The Central Victim Compensation Fund is a small step in the right direction. It provides financial compensation to victims of rape, acid attacks, amongst other offences. A holistic Victim Impact Statement framework can bring a substantial improvement in the victim's rights movement and ensures that each victim receives the support they require.

The State can attempt to understand the categorical support that a victim requires through a post-conviction 'Victim Impact Statement'. Some victims of serious crimes may require psychological help while others may require assistance to cover medical bills for injuries sustained. The state can then tailor rehabilitation according to their needs.

At the same time, the cathartic benefits of closure can be reached without the statement affecting the quantum of punishment on the accused. This will also ensure that the victim does not have the false expectation of an increased sentence, but receives aid from the State for rehabilitation.

The last question to be answered is:

  • why should a 'Victim Impact Statement' not impact the sentence of the convict?

The principled reason for this, as given in the aforesaid example, is that it is inherently unfair to punish convicts differently for the same offence. More worryingly, however, is the overwhelming evidence from the United States that shows that Victim Impact Statement perpetuates structural discrimination.

Professor Bryan Stevenson points out that Victim Impact Statement disproportionately increases the quantum of sentence on Black offenders for committing the same crimes as their White counterparts. On the flip side, losses of Black families are treated in a calloused manner as compared to those of white families. In India, minorities such as Dalits, Tribals and Muslims can very well find themselves on the receiving end of harsher sentences, especially if the victims of the crimes are upper-caste Hindus.

Some argue that a legislative provision for a Victim Impact Statement should be implemented as a check against Section 235 (2) of the Criminal Procedure Code 1973. Presently, by virtue of Section 235 (2), the accused is heard on the quantum of his sentence after conviction. It affords an opportunity to the accused to explain his circumstances such as abject poverty, or youth or other disadvantageous environs that the court ought to consider as mitigating factors at the stage of sentencing. Such comprehensive information as to the characteristics and background of the offender was ascertained to accord a just and at times, a lesser punishment.

However, this provision was not a part of the pre-1973 Code. It was in fact inserted after the recommendations of the 41st Law Commission Report, which found that the sentencing policy in India disproportionately targeted the underprivileged. Section 235 (2) Cr. P. C was inserted with the legislative intent to make the sentencing stage less discriminatory in nature. Research, however, shows that section 235 (2) Cr. P. C is routinely skipped, and the Indian death row figures revealed an over-representation of Muslims and Dalits. A 'Victim Impact Statement' affecting sentence of the accused may very well further skew these figures.

Conclusion
In a homogenous undifferentiated society, anti-social acts offend the strong cohesive conscience of the people. Punishment, therefore, in such a society is a mechanical reaction to preserve social solidarity. Individuals are but the instruments of society who “strike back” at the offender without any sense of Justice or immediate utility.

In contrast, the advanced and differentiated urban society develops another type of penal principle that is based on man-to-man requirements. In such a society, the law is not concerned with the preservation of social solidarity but merely with restitution and re-instalment because the wrong done is not considered a threat to social cohesion because men are little aware of it. The wrong is measured only in terms of damages or injury done to the victim. Against these reactions to crime, the Indian open society with its unique historical characters, demands of various differentiated sections with the minimum of friction, chaos and waste.

Hence, the punishment in our society becomes evaluated both in terms of social solidarity and restitutions to victim. The law and the Court should act as arbiter between the State and the offender and the victim. It will be recalled that only the theory of restitution can solve the forced conflict of the present criminal law.

Nothing can create such respect for the State and its laws in the eyes of the offender, the victim and the whole world as a general opinion of the inner-justice of a punishment that looks not to an immoral repaying of evil with evil, but with good. The complexity of life, therefore, demands that the victim of crime should forgive and forget the offender, and the latter should pay the indemnity for his act. If the first object of the criminal law should be the protection of society, the second is the compensation and restitution to victim.

With the development of the concept of Welfare State it is now being increasingly felt by criminologists, social thinkers and jurists that the administration of criminal justice should be such as would enable the victim to get his redress more expeditiously and adequately within the Criminal Justice System itself rather than through a long winding civil litigation against the individual offender. Moreover, the State having failed to give protection to its citizens, ought not to shy away from its responsibility to rehabilitate the victim by making adequate compensation for the loss suffered especially when the offender is unidentified or is so indigent that nothing substantial can be recovered from him by way of reparation.

Written By: Dinesh Singh Chauhan, Advocate
J&K High Court of Judicature, Jammu
Email: [email protected], [email protected] 

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