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
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
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
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
'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
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
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
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
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 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.
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
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]