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Victim Compensation Scheme in India

"Penal laws of ancient communities are not the law of crimes, it is the law of wrongs. The person injured proceeds against the wrong done by an ordinary civil action and recovers compensation in the shape of money damages if he succeeds."~ Sir Henry James Sumner Maine

In ancient Hindu law, awarding compensation was treated as a Royal Right. In recent years there has been a global awakening regarding the rights of victims, who remain neglected by the law-makers. One of the most neglected subjects in the study of crime is its victims. A victim of crime is a person who suffers any loss or injury as a result of the crime. In our present judicial system where it takes a number of years to decide a matter, the victim spends almost his whole life especially and waits for justice.

That justice remains incomplete without adequate compensation to the victim. The Victim Compensation Scheme somewhere highlights the study of Jeremy Bentham's Utilitarianism Theory, which is based on the principle of "greatest happiness to the greatest number." Although in the 19th Century Bentham himself in England received the concept of restorative justice.

Why Compensation is necessary for the victims?

In today's time, criminal cases are becoming a contest between the accused and the State. In the fight for hegemony between the State and the accused, the victims' plight is often forgotten. The offender is apprehended, tried, punished or absolved or even released on probation in certain situations, although found guilty in the Court. But the victim remains the victim. Therefore, it needs the moment for a criminal justice system to do something more than just punishing the criminal.

When a person commits a crime, the sufferer tends to seek justice. It can be sought in two ways:

  1. By only punishing the offender,
  2. By punishing the offender & Compensating the victim.

Hence, justice is complete when the victim is also compensated. To give complete mental satisfaction to the victim, it is extremely essential to provide some relief to him in the form of compensation.

Revolution of Victimology Movement

In the 20th century, particularly after the UN Declaration of Basic Principles of Justice for Victims for Crimes & Abuse of Power, 1985, the victim's perspective emerged in a new and powerful way. The UN Declaration recognised four major needs of crime victims:

  • Access to justice & Fair treatment,
  • Restitution,
  • Compensation &
  • Assistance.

Victim Compensation Provisions in India

  • The supreme law of the land, the Constitution of India, enumerates no specific provisions for victims. However, Part-lV (DPSP) under Article-41 & Part-V (Fundamental Duties) under Article-51A lays down the duty of the state to secure "the right to public assistance in cases of disablement and in other cases of undeserved want" & "to have compensation 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 Article- 21 of our Constitution. In various cases the apex court had held that making compensation is an integral aspect of right to life:
    • Rudul Sah vs State Of Bihar (1 August, 1983)
    • Bhim Singh, Mla vs State Of Jammu & Kashmir (22 November, 1985)
    • Dr. Jacob George vs State Of Kerala (13 April, 1994)
    • Peoples' Union For Democratic Rights vs State Of Bihar (19 December, 1986)

    And many more judgements.

  • Right to Compensation has also been interpreted as an integral part under Article-14 & 39A.
  • Section- 166B of IPC,1860 has provision for punishment for non-treatment of victims.

Compensation under CrPC, 1973

  • Section-357 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.
    Whereas Section-357(3) empowers the court to award compensation for loss or injury suffered by a person, even in cases where fine does not form part of the sentence.
  • The 154th Law Commission Report, 1996 on the CrPC devoted an entire chapter to victimology in which the growing emphasis on victims rights in criminal trials was discussed.
  • Admits the increasing concern for compensation to victims of crime Section-357A was inserted by the CrPC (Amendment) Act,2008 (w.e.f.31 Dec.2009) on the recommendation of the Malimath Committee Report on 'Reforms of Criminal Justice System,2008'. It also inserted Section-2(wa), Section-24(8) proviso & Section-372 proviso.
  • Section-357A provides that every State Government in coordination with the Central Government shall prepare a scheme for providing funds for compensating victims or their dependents who have suffered loss or injury and require rehabilitation.
  • If the trial court is satisfied that compensation awarded under Section-357 is not adequate for such rehabilitation or where the case ends in acquittal or discharge and the victim has to be rehabilitated, the court may make recommendation for compensation
  • When a recommendation is made by the court, the District Legal Service Authority or State Legal Service Authority shall decide the quantum of compensation to be awarded, under the scheme.
  • Where the offender is not traced or identified or no trial takes place, the victim or his dependents may apply to the State or District Legal Service Authority for award of compensation.
  • After due inquiry such authorities shall award adequate compensation by completing the inquiry within two months. Such compensation can be awarded even in the case of acquittal or discharge of the accused
  • Section-357B & Section-357C were inserted by Act 13 of 2013 CrPC Amendment (w.e.f.3 Feb.2013).
  • Section-357B provides that the compensation payable by the State Government under Section-357A shall be in addition to the payment of fine to the victim under Section- 326A, 376AB, 376D & 376DB of IPC, 1860.
  • Section-357C provides that all hospitals, public or private, whether run by Central Government, State Government, local bodies, or any other person shall immediately provide the first-aid or medical treatment, free of cost to the victims of any offence covered under Section - 326A, 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB or Section-376E of IPC,1860 and shall immediately inform the police of such incident.
  • Compensation to persons groundlessly arrested is under Section-358.
  • The Government introduced the Central Victim Compensation Fund (CVCF) Scheme to enable support to victims of rape, acid attacks, human trafficking, women killed or injured in cross border firing. Nirbhaya Fund is being used in CVCF.
  • The Supreme Court approached the National Legal Service Authority Compensation Scheme for women victims or sufferer of sexual assault or other crimes, 2018 as per which the minimum compensation should be 4 lakh rupee and said it will also extend to minor victims.

Judicial Creativity
Manish Jalan vs State of Karnataka (11 July 2008) - Supreme Court observed that the quantum of compensation is to be determined by taking into account the nature of crime, injury suffered and the capacity of convict to pay compensation. Nevertheless, the amount of compensation should be reasonable.

Nipun Saxena vs Union of India (11 Dec. 2018) - By noting drawbacks of existing schemes, the apex court found it fit to direct the National Legal Service Authority (NALSA) to frame a scheme for victims of sexual offences including the offences falling under the Protection of Children against Sexual Offences Act. (POCSO)

S.S. Ahluwalia vs Union of India (16 March 2001) - The Supreme Court agreed in principle that the Government should pay compensation to the family members of the persons killed in the riot.

Hari Kishan vs Sukhbir Singh (25 Aug. 1988) - The apex court said awarding compensation is a measure of responding appropriately to crime as well as reconciling the victim with the offender.

Despite the Ministry of Home Affairs directive asking states to modify the amount of compensation provided under Section-357A of CrPC, some States are yet to amend their State Victim Compensation Scheme. The result of this is that the amount of compensation a victim of an offence receives in one State varies greatly from the amount a victim of the same offence would receive in another State. In order to better restitution of victims, the other States law requires to prepare a blueprint of victim compensation like Delhi Victim Compensation Scheme.

Way Forward
There has been a great shift in the approach of the criminal justice system towards victims of crime in India. Promoting victim friendly jurisprudence and building a responsive and remedial system is the need of hour. To fill the gaps, the Victim Compensation Scheme has been a bold attempt by the States to compensate the losses or injuries suffered by the victims as well as meet the needs of rehabilitation. However, the Schemes across the States have been seen to be divergent on many aspects. Accordingly, orders must be made to provide the best deal to the victim and simplicity of procedures must be emphasized upon and imposition of burden on victims must be reduced.

Victim Compensation is emerging as a basic human right in morden criminology. Right to restitution must be separated from the right to compensation. Both terms have been used interchangeably in our criminal justice system, leading to a larger degree of confusion. Victim Compensation Scheme must be revitalized by revising in terms of accessibility and adequacy. Till now, presently a criminal justice system focuses on two values of - Criminal Control & Due Process. But there is a need to third value i.e. Victim Participation. Without such a value the aim of justice will remain unfilled.

Written by Shashwata Sahu, Advocate - LLM, KIIT School Of Law

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