Overview
The compensation to a victim of crime is something needs immediate recognition. The condition of the rights of the victim is no better throughout the world. The idea of compensating the victims, who have suffered because of the State’s inability to protect their rights, is pretty much easy to comprehend, compensation serves to right what would otherwise count as wrongful injuries to person or their property. It will not be untrue to say that the victims of any serious crime do not get due attention in most of the Criminal Justice Systems.
It is the frailty of our judicial system where victims of crime their distressed dependents do not attract the attention of law, as a matter of fact, this still doesn’t find any significant space in our criminal jurisprudence. This is a major shortcoming of our judicial system which needs to be rectified by the legislature.
Introduction
In India, the word “victim” is defined in Section 2(wa) of the Criminal Procedure Code, 1973 (Cr.P.C.). The term “victim” means “a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression “victim” includes his or her guardian or legal heir”[1].
Any Criminal act either cause bodily or soul destruction or even both. Some effects or consequences of such acts could be:
1) Psychological Effect
It takes a few second to commit a crime or physically harm a person but it takes years to erase this horrific act from the mind of a person. There is a higher level of anxiety, depression, are a few psychological effects. Increased self-consciousness and lowered self-esteem is reported by women both in general and in the social sphere.
2) Social and Economic Effect
Victims might face societal discrimination or they become inferior of the society they live in. They may hesitate to leave their homes fearing an adverse reaction from the outside world. Victims of crimes such as vitriolage, rape etc., who are not married are not likely to get married and those victims who have got serious disabilities because of an attack like blindness, will not find jobs and earn a living. Discrimination from other people, or disabilities, makes it very difficult for victims to look after for themselves and they become dependent on others for food and money.
3) Medical Effects
The medical effects of crimes such as acid attacks or any sort of sexual assaults are severe, such assaults can inflict lifelong injuries and even impairments.
In State of Gujarat v. Hon’ble High Court of Gujarat[2], the Supreme Court noted that:
“A victim of crime cannot be a ”forgotten man” in the criminal justice system. It is he who has suffered the most. His family is ruined particularly in case of death and other bodily injuries. This is apart from the factors like loss of reputation, humiliation, etc. An honour which is lost or life which is snuffed out cannot be recompensed but then monetary compensation will at least provide some solace.”[3]
The Hon’ble Court also observed that:
“Compensation is awarded under the scheme as formulated pursuant to Section 357A of Cr.P.C. as the fundamental rights of the victim under Article 21 have been in fact violated. Denial of compensation to such victims would continue such violation and perpetrate gross inhumanity on the victim in question.”[4]
In another landmark case of D. K. Basu v. State of West Bengal[5], the Supreme Court held that state compensation is mandatory in cases of abuse of power and said that
“To repair the wrong done and give judicial redress for legal injury is a compulsion of judicial conscience”.
The idea of compensating the victims is mainly based on the following principles or rather jurisprudence of the criminal justice system:
- Reinstatement: Offenders or third parties who are responsible for the harm should make fair reinstatement of victims and to their immediate dependents, according to the loss suffered. It should include the return of property or payment for the loss or harm inflicted, reimbursement of expenses incurred as a result of the victimization and the restoration of rights. The Legal Service Authority of the State should keep a check on the regulations to consider restitution and if the victimizing act or omission has occurred by a State authority it is the State or Government which are responsible to provide restitution to the victims.
- Support: Authorities should ensure proper assistance and support to the victims to access the necessary material, medical, psychological and social assistance. Victims are ought to be informed of all the medical and social services assistance readily available by the Government. Police and health service personnel need to be trained to ensure proper and prompt aid to the victims. Also, it should be understood that special attention needs to be given to according to the quantum of the harm inflicted.
- Compensation: It is the duty of the State to device a system to compensate the victims, who have suffered severe bodily injury or psychological wellness due to the serious crime, and the dependents of those victims. Such system will enable the strengthening position of the victims who have suffered the harm. Funds for compensation to victims should be encouraged, where appropriate, other funds may also be established for other purposes for the retribution of the victim.
Legal Provisions and Development
Both, the legislature and the Courts, has an equal role in the growth of rights of the victims in the Indian Criminal Justice System. However, besides the legislature and the Judiciary, a very important role has been performed by think tanks such as Indian Society of Victimology ISV), National Human Rights Commission (NHRC), National Legal Service Authority (NALSA) and even World Society of Victimology, which works for the research and development in the subject of victimology in India.
An important role has been performed by International documents such as the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power[6]
The Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, considered the ‘magna carta’ for victims, provides the basic framework of principles which in the last two decades have been vociferously debated and converted as victims’ rights by some of the developed countries.
In the last couple of decades, there has been much prudence on the part of the higher judiciary of the need for better treatment of crime victims by the criminal justice agencies at different stages in India and this is reflected in the recommendations of the different committees and commissions calling for reforms in the criminal justice system to improve the existing conditions and situations of victims during the criminal justice process and some of the landmark judgments of the Apex Court in India.
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154th Law Commission of India Report[7]
The Law Commission, in its report in 1973, stated that, “The State should accept the principle of providing assistance to victims out of its own funds, (i) in cases of acquittals; or (ii) where the offender is not traceable, but the victim is identified; and (iii) also in cases when the offence is proved”.
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Justice Malimath Committee on Reforms of Criminal Justice System Report
An important object of the Criminal Justice System is to ensure justice to the victims, yet they have not been given any substantial right, not even to participate in the criminal proceedings. Therefore, the Justice V. S. Malimath Committee made several recommendations of far-reaching significance to improve the position of victims of crime in the criminal justice system, including the victim’s right to participate in cases and to adequate compensation. Some of the significant recommendations include[8]:
i) The victim has a right to be represented by an advocate of his choice; provided that an advocate shall be provided at the cost of the State if the victim is not in a position to afford a lawyer.
ii) Legal services to victims in select crimes may be extended to include psychiatric and medical help, interim compensation and protection against secondary victimization.
iii) Victim compensation is a State obligation in all serious crimes, whether the offender is apprehended or not, convicted or acquitted. This is to be organised in separate legislation by Parliament.
iv) The Victim Compensation law will provide for the creation of a Victim Compensation Fund to be administered possibly by the Legal Services Authority. The law should provide for the scale of compensation in different offences for the guidance of the Court. It may specify offences in which compensation may not be granted and conditions under which it may be awarded or withdrawn.
It is the considered view of the Committee that criminal justice administration will assume a new direction towards better and quicker justice once the rights of victims are recognized by law and restitution for loss of life, limb and property are provided for in the system.”
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NALSA’s Compensation Scheme for Women Victims/Survivors of Sexual Assault/other Crimes – 2018[9]
Hon’ble Supreme Court of India in Nipun Saxena Vs. Union of India[10] opined that “it would be appropriate if NALSA sets up a Committee to prepare Model Rules for Victim Compensation for sexual offences and acid attacks taking into account the submissions made by the Ld. Amicus.”
The Committee had finalized the “Compensation Scheme for Women Victims/Survivors of Sexual Assault/other Crimes” and submitted the same before the Hon’ble Supreme Court of India on 24th April 2018.
The Apex Court ordered that the Scheme and the Guidelines will be operational from 2nd October 2018.
NALSA’s Compensation Scheme provided guidelines for providing compensation to the victims or their dependent(s) who have suffered loss or injury or require rehabilitation as a result of the offence. “While deciding a matter, the authorities may take into consideration the following factors relating to the loss or injury suffered by the victim[11]:
(1) Gravity of the offence and severity of mental or physical harm or injury suffered by the victim;
(2) Expenditure incurred or likely to be incurred on the medical treatment for physical and/or mental health of the victim, funeral, travelling during investigation/ inquiry/ trial (other than diet money);
(3) Loss of educational opportunity as a consequence of the offence, including absence from school/college due to mental trauma, bodily injury, medical treatment, investigation and trial of the offence, or any other reason;
(4) Loss of employment as a result of the offence, including absence from place of employment due to mental trauma, bodily injury, medical treatment, investigation and trial of the offence, or any other reason;
(5) The relationship of the victim to the offender, if any;
(6) Whether the abuse was a single isolated incidence or whether the abuse took place over a period of time;
(7) Whether victim became pregnant as a result of the offence;
(8) Whether the victim contracted a sexually transmitted disease (STD) as a result of the offence;
(9) Whether the victim contracted human immunodeficiency virus (HIV) as a result of the offence;
(10) Any disability suffered by the victim as a result of the offence;
(11) Financial condition of the victim against whom the offence has been committed so as to determine his/her need for rehabilitation.
(12) In case of death, the age of deceased, his monthly income, number of dependents, life expectancy, future promotional/growth prospects etc.
(13) Or any other factor which the SLSA/DLSA may consider just and sufficient”
The Hon’ble Supreme Court of India also suggested that while nothing should be taken away from this Scheme, but it does not preclude the State Governments/UT Administrations from adding to the Scheme.[12]Around every State and UTs have their Victim Compensation Schemes u/s 357A of Cr.P.C., these schemes lay guidelines specifically for the better delivery of justice to the victims.
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Justice for Rape Victims – Guidelines for Victim Assistance
Bodhisattwa Gautam v. Subhra Chakraborty is a landmark case in which the Supreme Court issued a set of pointers to help indigenous rape victims, who cannot afford legal, medical and psychological services, as per the Principles of UN Declaration of Justice for Victims of Crime and Abuse of Power, 1985[13]:
“i) It is necessary, having regard to the Directive Principles contained under Art. 38 (1) of the Constitution of India, to set up a Criminal Injuries Compensation Board. Rape victims frequently incur substantial financial loss. Some are too traumatized to continue in employment;
ii) Compensation for victims shall be awarded by the Court on conviction of the offender and by the Criminal Injuries Compensation Board whether or not a conviction has taken place. The Board will take into account pain, suffering and shock as well as loss of earnings due to pregnancy and the expenses of childbirth if this occurred as a result of the rape.”
The Supreme Court of India, despite the absence of any special legislation to assure justice to the victims, has taken significant actions and proactive measures to protect the rights of victims of a crime. The court has adopted the concept of restorative justice and awarded compensation and restitution and enhanced the amount of compensation to victims.[14]
Conclusion
Compensatory rights for the victims are fundamental human rights which are identified in the modern criminology. Insertion of section 166B in IPC,1860 and Section 357A in Cr.P.C. 1973 is a pivotal step towards the development of modern criminology towards victim rights by expanding the penal and procedural laws to promote a proper right based remedy.
The very nature of the criminal justice system to make a trial and punish the accused should not overshadow the part of other criminal administration and not ignore the rights of compensation for the victims who have suffered because of the State’s inability to protect their rights.
The recognition of the victim as a person with compensatory rights is a major break with the past. The need of the hour asks for a transition from retribution to restitution and compensation form of public justice system by the state.
[1] The Criminal Procedure Code, 1973 [ Act No. 2 of 1974]
[2] State of Gujarat v. Hon’ble High Court of Gujarat (1998) https://indiankanoon.org/doc/1899469/;
[3] Ibid.
[4] Serina Mondal Alias Piyada v. The State Of West Bengal WP 4517 (W) of 2018
[5] D. K. Basu vs. State of West Bengal AIR 1997 SC 610
[6] UN General Assembly, 1985
[7] 154th Law Commission of India Report, 1973 https://www.latestlaws.com/library/law-commission-of-india-reports/law-commission-report-no-154-code-criminal-procedure-1973-act-no-2-1974-vol/
[8] Justice Malimath Committee on Reforms of Criminal Justice System, 270;271 (2003), http://dfs.nic.in/pdfs/criminal_justice_system.pdf
[9] Compensation Scheme for Women Victims/Survivors of Sexual Assault/other Crimes, (2018), https://nalsa.gov.in/services/victim-compensation/nalsa-s-compensation-scheme-for-women-victims-survivors-of-sexual-assault-other-crimes—2018
[10] Nipun Saxena Vs. Union of India, 2772 SCC (2018).
[11] Supra. Chapter 8
[12] Supra.
[13] Bodhisattwa Gautam v. Subhra Chakraborty AIR 1996 SC 922
[14] Sukhdev Singh v. State of Punjab (1982 SCC (Cr) 467); Balraj v. State of U. P. (1994 SCC (Cr) 823); Giani Ram v. State of Haryana (AIR 1995 SC 2452); Baldev Singh v. State of Punjab (AIR 1996 SC 372)
This article is written by Saransh Awasthi, 2nd year of BLS.LLB at Government Law College, Mumbai.
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