Compensatory Jurisprudence For Victims

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victim compensation
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 “So slow is justice in its way.  Beset by more than customary clog. Going to law in these expensive days, is much the same as going to dogs”[1] Willock

INTRODUCTION

Unlike the accused, victims have virtually no rights in criminal proceedings. Victims are left to either suffer injustice silently or seek personal retribution by taking law into their hands. Justice Krishna Iyer makes it clear that criminal law in India is not victim oriented rather it is offender oriented and suffering of victims often immeasurable, are entirely overlooked in misplaced sympathy for the criminal. Denial of any role of the victim is not only denial of justice to the victims but also would tantamount to negate the Rule of law, the fundamental of democracy and constitutionalism. In India the accused has been treated as a privileged person. He gets all possible help from all corners of the country. Not only he gets defence counsel at the costs of the state at the time of the trial but he is also benefited after conviction. The aftercare reformative and rehabilitative programs for the accused are also at the rise. The punishment can be considered more as treatment, rehabilitation and re socialisation through probation, parole and after care community services. The modern criminal law overlooks the by product of the victims of crime. The lack of victim oriented jurisprudence is the main cause of deterioration of the conditions of the victim and their family members. The victim sets the criminal into motion but then goes into oblivion.

The adoption by the General Assembly of the United Nations at its 96th Plenary on November, 29/ 1985 recognised the four major components of the rights of victims of crime- Access to Justice and fair Treatment[2], Restitution, Compensation and Assistance. The Indian Legal Framework regarding Compensatory Jurisprudence is read under two heads-

  1. Judicial Response
  2. Under the Constitutional Scheme

The legal Framework regarding the compensation to victims of crime can be traced in three major legislations namely as-

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*Section 357[3] states that if an offender is given a sentence of which fine forms a part, then a certain sum of such fine may be applied in restoring any loss of property that the victim have suffered.

*Section 357-A[4]

  1. Every State Government in Co-ordination with the Central Government shall prepare a scheme for proving funds for the purpose of compensation to the victim or his dependents that have suffered loss or injury as a result of the crime and require rehabilitation.
  2. Recent Changes include: Victim can engage Advocate to support and assist the prosecution.
  3. Statement of the victim to be done in a safe place or a place of her choice and by a women policy officer.
  4. Use of Audio Video for Recording Statements.
  5. .Use of Audio Video Electronic means for confession/statement.
  6. Witness can be done by using Electronic Means.
  7. In Camera Trials and Identity Protection.
  8. Victim compensation.[5]
  9. Right to appeal for the victim against the verdict of the Trial Court.[6]

*Section 5(1)[7] states that the court directing the release of an offender under section 3 or section 4, May, if it thinks fit make at the same time a further order directing him to pay-

  • Such compensation as the court thinks reasonable for loss of injury caused to any person by the commission of the offence;
  • Such costs of the proceedings as the court think reasonable.

Constitutional law of India and Victims of Crime

The Indian Constitution has several provisions which endorse the principle of victim compensation. The constellation of these clauses had laid down the foundation of new order in which Justice-Social, Economical and Political would flower in the national life of the country (Article 38). Similarly Article 41, which has relevance to Victimology mandates that the State shall make an effective provision for securing public assistance in case of disablement. Article 51-A makes it a fundamental duty of every citizen of India to protect and improve the natural environment… and to have comparison for living creatures and to develop humanism. If empathetically interpreted and imaginatively expanded, one can find here the constitutional beginnings of victimology in the opinion of Krishna Iyer.[8] Article 21 provides protection of personal liberty and life and obligates the State to compensate victims of criminal violence.[9] While every accused has a right to have fair trial, and those who are convicted are to be served justice not merely by punishing them, but by sending them to correctional homes where different kinds of psychological and vocational training is imparted to them. The issue of victim’s rights seems to have been consigned to the backburner and forgotten. It is in this context that everybody has to realize that statutory provisions in Indian criminal law in favour of victims are very few, but judiciary has helped in extending the scope of the existing provisions to the victims. Although the judiciary is actively engaged in finding the redress for the victims the ultimate goal is to pass powerful, creative and efficient legislation in order to strengthen the hands of the Judiciary.

The principle of payment of compensation to the victim of crime was evolved by the Supreme Court on the ground that it is the duty of the welfare state to protect the fundamental rights of the citizens not only against the actions of its agencies but also responsible for hardships to the victims on the ground of humanitarianism and obligations of social welfare, duty to protect its subjects, equitable justice etc.

JUDICIAL PRECEDENTS 

In Rudal Sah v. State of Bihar[10]the Supreme Court for the first time made it categorically clear that the higher judiciary has the power to award compensation for violation of fundamental rights through the exercise of writ jurisdiction and evolved the principle of compensatory justice in the annals of human rights jurisprudence. This is the most celebrated case where the Supreme Court directed the State of Bihar to pay compensation of Rs.35, 000/- to Rudal Sah who was kept in jail for 14 years even after his acquittal on the ground of insanity and held that it is a violation of Article 21 by the State.

In the land mark case of Sarwan Singh v. State of Punjab[11], the Supreme Court held that in awarding compensation, the court has to take into consideration various factors such as capacity of the accused to pay, the nature of the crime, the nature of the injury suffered and other relevant factors. The court observed: “power to award compensation to victims should be liberally exercised by courts to meet the ends of justice… in addition to conviction. The court may order accused to pay some amount by way of compensation to the victim who has suffered by action of accused. It is not alternative to but in addition thereto. The payment of compensation must be reasonable. If there are more than one accused, quantum may be divided equally unless their capacity to pay varies considerably. Reasonable period for payment of compensation if necessary by, installment may be given”.

In Sebastain v. Union of India[12], two women filed a writ of habeas corpus to produce their husbands, who were found missing. The authorities failed to produce them. The court concluded, on the basis of material placed before it, that the two persons “must have met unnatural deaths and that prima facie they would be offences of murder”. On account of failure of Government, the Supreme Court directed the respondents to pay Rs.1 lakh to be given to each of the wives of the missing persons.

The decisions in Nilabati Behera v. State of Orissa[13] and in Chariman, Railway Board v. Chandrima Das[14] are illustrative of the new trend of using Constitutional jurisdiction to do justice to the victims of crime. Substantial monetary compensations have been awarded against the instrumentalities of the State for the failure to protect the rights of the victims.

The fallout from the path-breaking Vishaka judgment (Vishaka v. State of Rajasthan)[15] helps to illustrate the situation of female victims. After police and medical personal prevented a social worker who was gang raped by upper caste individuals in a village in Rajasthan from registering her case and providing evidence, social activists and NGOs brought a writ petition seeking legal redress for the sexual harassment of working women and for realization of gender equality. The Supreme Court in this landmark judgment recognized sexual harassment of working women in workplace and outline guidelines to prevent and redress complaints of such crimes.

In Bhim Singh v. State of Jammu and Kashmir[16], Bhim Singh, a Member of the Legislative Assembly, was arrested while on his way to attend a meeting of the Assembly. Due to this arrest he was deprived of his constitutional right to attend the Assembly session. The Court held, when a person comes to the court with the complaint that he has been arrested and imprisoned with mischievous and malicious intent and that his constitutional and legal rights were invaded, the mischief or malice and the invasion may not be washed way or wished away by his being set free. In appropriate cases the Court has the jurisdiction to compensate the victim by awarding suitable monetary compensation. While considering this as an appropriate case, the Supreme Court awarded a sum of Rs. 50,000/- as compensation and ordered the same to be paid within two months.

In D.K.Basu v. State of West Bengal[17], the Supreme Court observed: “It is now a well accepted proposition in most of the jurisdiction, that the monetary and pecuniary compensation in an appropriate and indeed an effective and sometimes perhaps the only suitable remedy for the redressal of the established infringement of the Fundamental Right to life a citizen by the public servants. The State is vicariously liable to which the defence of sovereign immunity is not available and the citizen must receive the amount of compensation from the State, which shall have the right to be indemnified from the wrongdoer”.

In Sarwan Singh v. State of Punjab[18], the Supreme Court reiterated its previous standpoint and also laid down points to be taken into account while imposing fine or compensation: it is necessary for the court to decide whether the case is fit enough to award compensation, if found fit enough, the capacity of the accused to pay the fixed amount, the nature of the crime, the injury suffered, the justness for the claim of compensation and other relevant circumstances are to be taken into account in fixing the amount of fine or compensation. After consideration of all facts, the Court felt that in addition to the sentence of 5 years rigorous imprisonment, a fine of Rs.3, 500/- on each of the accused under section 304 (1), IPC should be imposed.

In Rachhpal Singh v. State of Punjab[19], the High Court concurred with the findings of the sessions court on the conviction imposed but held the imposition of capital punishment was uncalled for as the case was not one of the rarest of rare case and hence their sentence was reduced to imprisonment of life. With regard to the other three accused, they were acquitted under section 302 read with 148 IPC. However, the conviction under section 449 IPC was maintained but the period of sentence was reduced to the period undergone. Considering the revision petition, the High Court held that it was a fit case for exercising the jurisdiction under Section 357 Cr PC and directed each of the appellant to pay a sum of Rs.2,00,000/-totalling Rs. 4,00,000/- and in default, was to undergo a sentence of 5 years rigorous imprisonment. Against this order the appellants filed an appeal before the apex Court.

Conclusion

“Too much mercy often resulted in further crimes which were fatal to innocent victims who need not have been victims if justice had been put first and mercy second.”  -Dame Agatha Christie

The Victim of crime is still a “Forgotten man” in the criminal Justice System. A Paradigm shift in the Justice System is the need of the hour. There should be change in the thought and focus from criminal Justice to Victim Justice, but Victim Justice shall be perceived as complementary and non contradiction to criminal justice.

Justice should not only be done, but also seems to be done”

[1] The Victim in Criminal Justice System’ by Mahmood Bin Muhammad in ‘Perspective of Criminology

[2] Clauses 4 and 5 of the U.N. Declaration read thus:

“4. Victims should be treated with compassion and respect for their dignity. They are entitled to access to the mechanisms of justice and to prompt redress, as provided for by national legislation, for the harm that they have suffered.

  1. Judicial and administrative mechanisms should be established and strengthened where necessary to enable victims to obtain redress through formal or informal procedures that are expeditious, fair, inexpensive and accessible. Victims should be informed of their rights in seeking redress through such mechanisms.”

[3] Criminal Procedure Code, 1973

[4] Added by The Code of Criminal Procedure (Amendment) Act 2008 (5 of 2009)

[5] Sakshi v. Union of India, AIR 2004 SC 3566

[6] Sarwan Singh Vs State of Punjab  SCC 111 (1978 )

[7] Probation of Offenders Act, 1958

[8] V.R.Krishna Iyer, A Burgeoning Global Jurisprudence of Victimology and some compassionate Dimensions of India Justice to victims of crime, 1999.

[9] D.D.Basu, Constitutional Law of India, Nagpur, Wadhwa & Co., 2003.

[10] AIR 1983 SC 1086

[11] AIR 1978 SC 1575

[12] AIR 1984 SC 1826

[13] 1993 2 SCC 746

[14] 2000 CrLJ 1473 SC

[15] AIR 1997 SC. 3011

[16] (1985) 4 SCC 677

[17] AIR 1997 SC 610

[18] AIR 1978 SC 1525

[19] 2002 Cr LJ 3540 SC

Pranav Kumar Kaushal, Content Writter, Law Corner, Student B.A., LLB 7th Semester, School of Law, Bahra University, Shimla, Himachal Pradesh.