Open Access Research Article
COMPENSATION SCHEME: A CRITICAL STUDY ON SURVIVORS OF SEXUAL OFFENCES
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Article Details
COMPENSATION SCHEME: A CRITICAL STUDY
ON SURVIVORS OF SEXUAL OFFENCES
CO-AUTHOR - DR. AJEET KUMAR SINGH
Department of Law, MUIT, Lucknow
Abstract:
There are two parties
of a case, one is Prosecution (Victim)
and other is Defense (Accused). Both are paramount
to Criminal Justice
System. In original
Criminal Procedure Code the
rights of accused were provided, but the victims were seen as an informant
of crime. They are now acquiring a central stage in the Criminal Justice
administration, specially the
women victims of sexual offences. In
every society the sexual offence is present. The impact of
sexual assault and sexual abuse is irreparable. Major amendments were took place after Nirbhaya case.
Compensation to the sexual victim was
given if the accused is arrested and convicted under sec. 357 of Criminal Procedure
Code. Now a victim can be compensated by the government even if the accused
is not found. Money cannot heal the emotional and life-long pain of the victim but it helps to some extent to reduce the
pain. It takes enormous strength and positive
state of mind which can be achieved by counseling of the victim at each
and every step till she is alive.
Restorative Justice is the fundamental right under the constitution of India and also it puts the duty on the
State to compensate the victim. Compensation
schemes prevailing in all over the States of India are not same. For the
same offence different amount of
compensation is disbursed to the victims. Due to complex procedure under
these schemes the poor and uneducated victim is deprived
of her right to compensation. There is a need of
comprehensive statute for compensating the victims of sexual offences.
Keywords:
Sexual Offences, Survivors, Criminal Procedure
Code, Justice.
Introduction
The
entire criminal justice system revolved around the offender till 2008. It
focused on accused rights. The
victims were forgotten persons. The role of victim was only for reporting the crime and appearing before the court. The victim’s
rights are paramount in criminal
justice system because he/she is the real sufferer. The effect of sexual abuse on women victim is more devastating than
the other offences. In case of sexual offences
the entire psychology of the victim becomes upside down. The long lasting
impact destroys his/her
dignity in society. Only punishing the accused is not enough to give justice to the victim. She should be
rehabilitated through various methods of restoration so that she can act effectively again in the society.
Declaration of Basic Principles of Justice for Victims of Crime and Abuse of
power, 1985 defines Victims
of crime as:-[1]
“Victim means 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 act or
omission that are in violation of criminal laws operative within member
states including those laws prescribing criminal abuse of power.”
A
person who may be considered as victim, under this declaration regardless of
whether the perpetrator identified,
apprehended, prosecuted or convicted and regardless of the familial
relationship between the perpetrator and the victim,
the term victim also includes the immediate family or
dependence of the direct victim and persons who have suffered harm in intervening to assist victims
in distress or to prevent
victimization.
“Victim is the person who has suffered
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.”
Victims of sexual offences are those persons who have suffered any
wrongful loss or injury as a result
of sexual offences punishable under penal laws. Sexual abuse is the act against another person without the consent
of that another person. Some of the sexual offences
punished under the Indian Penal Code, 1860 are sexual harassment, sexual assault, voyeurism, rape, gang rape,
digital rape outraging the modesty of a woman by doing some sexual activity etc.
The
women victims of sexual offences are more vulnerable. They have got suicidal or depressive tendencies. Sexual violence
affects victim’s relationship with the family members,
friends and Co- workers. They do not trust on their family or friends. They cannot get close to the friends and
relatives as before the crime. Some of the survivors are at the risk of pregnancy and sexually transmitted
infections. Some victims express their
emotions while others keep their feelings inside. Some of the emotional
reactions are guilt, shame,
self-blame, embarrassment, fear, distrust, sadness, isolation etc. They suffer psychological disorders
like nightmares, flashbacks, depression, difficulty in concentrating, post-traumatic stress disorder. Some victims face bodily injury like changing in eating or sleeping disorders,
anger, numbness, Confusion, shock, anxiety, phobias, etc.
In
many leading cases, Supreme Court issued guidelines in favor of the rape
victims. In Delhi Domestic Working Women’s Forum v. union of India and others[3],
it was held by the Supreme Court that
speedy trial is one of the essential requisite of law in case of sexual offences. The trial cannot be frustrated
by prolongation of investigation. If the trial is not done speedily then the rights guaranteed under article 14 and article
21 will be meaningless. Rape
is an experience which shakes the foundation of the lives of the victims.
The effect of sexual offence is life time for many of the victims. It alters
their behavior and generates endless
fear. In addition to the trauma of the rape, victims have had to suffer further agony during legal proceedings. The complaints of rape are handled roughly
and are not given such attention as is warranted. The victims are humiliated by the police.
In Shri Bodhisattva Gautam v. Miss
Subhra Chakraborty[4],
the Supreme Court stated that rape is
not only a crime against a woman; it is a crime against the entire society. It destroys
the entire psychology
of a woman and pushed her into deep emotional
crises. It is only by her
sheer willpower that she rehabilitates herself in this society which on coming to know of the rape, looks down
upon her and disrespect her. Rape is therefore
the most hated crime.
The most significant case for sexual harassment at work place is Bhanwari Devi’s case[5]. The case is known as Vishakha Guidelines.
The Supreme Court of India set guidelines for
the protection of women workers
at the workplace and stated the method to be followed
while dealing the cases regarding sexual harassment of women. The guidelines were issued by the Supreme Court for the
protection of working women. Further it extends
the meaning and scope of sexual harassment. It defines sexual harassment as an unwanted sexual determination which is
directly or impliedly intended to cause the following-
(i)
Physical contact or advances
(ii)
A demand or request
for sexual favors
(iii)
Sexual colored remarks
(iv)
Showing Pornography
(v)
Any other unwelcome
conduct whether it is physical,
verbal or non- verbal.
All victims
have right to seek protection from the State as it considered as the fundamental right under Article
21 of the Constitution. They can get free legal aid provided under Article 39A.
Victim can engage advocate
of her choice to assist
the prosecution. Her statements can be recorded at safe place of her
choice. They have right of In- Camera
trial and identity protection. There was a huge change in laws pertaining to rape and sexual offences after the
Mathura rape case in 1983. In this case it was held that the victim had given her consent. Section 114A was added in
the Indian Evidence Act 1862. Now the
consent of the rape victim shall be
presumed absent. States are bound to compensate the victims according to the victim
compensation scheme. Every state has
their own scheme for compensating the
victims. The amount under these schemes is not disbursed uniformly.
Although, Central Government has made a Central Scheme, but the States are still following their own scheme.
These schemes are available on the
paper only. The implementation of the schemes is very tough due to complex procedure of law. If the money is not paid
to the victim within time period then it will
not amount to justice to the victim. Some of the victims are not aware
of the schemes. In Rajasthan 3305
cases of rape were registered in 2017 and only 140 victims received compensation under these schemes.
Justice Verma Committee was formed after the horrendous Nirbhaya gang rape case[6] in 2012. After this report the laws on rape
and sexual violence made more stringent. It recommended the establishment of a Rape Crisis Cell, setup of CCTVs at all police stations,
online filing of complaints by the victims, assistance to victims of rape and sexual assault irrespective of the place of the crime.
The
Malimath committee[7] recommends
that a holistic approach shall be taken by the
government to guarantee the victim’s rights. Especially two rights, one
is to participate in criminal trial
and another is to seek compensation as a matter of right. This report mentioned that people by and large have
lost confidence in the criminal justice system. Victims feel ignored and facing obstacles in gaining access to
redress mechanism. They are
victimized again and again by the law enforcing agencies. Police behavior is
not co- operative. In State of Madhya Pradesh v. Madan Lal[8], the
Supreme Court gave directions to the
Lower Courts that they should not give order of compromise and settlement (Marriage between the accused and then
prosecutrix) in rape cases because it is against the honour of a woman. In Aparna
Bhatt and others v. State of Madhya Pradesh[9],
it was held that the conditions of
bail to the accused should not be impugned
(to tie rakhi onthe hand of the accused, accused
register himself as COVID Warrior).
These conditions are not in the interest
of justice.
Supreme Court Judgments-
In
Nipun Sexena v. Union of India[10],
it was observed by the Bench of Justice Madan B. Lokur and Justice Deepak Gupta that unfortunately, in our
society, the victim of a sexual offence,
especially a victim of rape, is treated worse than the perpetrator of the
crime. She has been subjected to
forcible sexual abuse. However, for no fault of the victim, society instead of empathizing with the
victim, starts treating her as an ‘untouchable’. A victim of rape is treated like a “pariah” and ostracized from society. Many times, even her family refuses to accept her back into
their fold. The harsh reality is that many times cases of rape do not even get reported because of the false
notions of so called ‘honour’ which
the family of the victim wants to uphold. The matter does not end here. Even
after a case is lodged and FIR
recorded, the police, more often than not, question the victim like an accused.
If the victim is a young girl who has been dating and going around with a
boy, she is asked in intimidating terms as to why she was dating a boy. The
victim’s first brush with justice is
an unpleasant one where she is made to feel that she is at fault; she is the cause of the crime.
A victim of rape will face hostile discrimination and social ostracize in
society. Such victim will find it difficult to get a job, will
find it difficult to get married and
will also find it difficult to get
integrated in society like a normal human being. Our criminal jurisprudence does not provide for an adequate
witness protection programme and, therefore, the need is much greater to
protect the victim and hide her identity. In this regard, we may make reference to some ways and means where the
identity is disclosed without
naming the victim. In one case, which made the headlines recently, though the name of the victim was not given, it was
stated that she had topped the State Board Examination
and the name of the State was given. It would not require rocket science to find out and establish her identity. In another instance,
footage is shown on the electronic media where the face of the victim is
blurred but the faces of her relatives, her
neighbors, the name of the village
etc. are clearly visible. This also amounts to disclosing the identity of the victim. We,
therefore, hold that no person can print or publish
the name of the victim or disclose any facts which can lead to the victim being identified and which should make her identity known to the public at large. The Supreme
Court in Suresh v. State of Haryana[11],
and Nipun Sexsena v. Union of India[12],
it was held that the courts are duty
bound to consider the factual scenario of each case to recommend appropriate compensation under section 357 and section 357A of Criminal Procedure
Code, however despite these guidelines and judicial interventions the victim compensation is still remains far reaching
dream for majority of the victims.
Victim’s right to rehabilitation includes-
1.
Access to justice
and fair treatment
2.
Restitution
3.
Compensation
4.
Assistance
Compensation
to victims of sexual offences can be awarded by the courts under Section 357 of the Code of Criminal Procedure
1973 from the fine recovered
as a part of sentence. If the compensation under this section is not adequate then there was no provision provided under the code before
2009. An amendment was made in the code and Section
357A was added in the code, under which, compensation can be recommended even in cases where the trial
ends in acquittal or discharge, provided there
is a need for rehabilitation of the victims. Even if there is no trial takes
place, compensation can also be
granted because the offender is not identified and cannot be traced and the victim requires
rehabilitation. Thus under Section 357, a victim
is entitled to compensation
only when the accused is convicted. Still under Section 357A, there is a limitation of compensation amount.
Complex procedure of getting compensation under the scheme
deters the victims to
get timely assistance.
Reparation is another mode of rehabilitation it includes restitution, compensation, satisfaction and guarantee of non-repetition. Apart from compensation victim’s assistance is a dire necessity for victims of sexual offences.
This includes Crisis intervention,
Counseling, Emergency Shelter, Criminal justice advocacy and Emergency transportation.
Victim
assistance is important psychologically, financially, physically and
spiritually for those who have been undergone the trauma of sexual offence.
The compensatory mechanism
should be adequate
and uniform in whole India.
The
Indian policy makers must follow the guide i.e.
The Declaration of Basic Principles of
Justice for Victims of Crime and Abuse of Power, 1985 to protect the victim
rights. These are as follows-[13]
a)
Victims should be treated with compassion and respect
for their dignity. They are entitled
to the mechanisms of justice and to promote redress, as provided by national legislation, for the harm that they have suffered.
b)
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.
c)
Informing victims of their role and the scope, timings
and progress of the proceedings and of the disposition of
their cases, especially where serious crimes
are involved and where they have requested
such information.
d)
Allowing the views and concerns of victims to be
presented should be considered at appropriate stages of the proceedings where their personal
interests are affected
without prejudice to the accused
and consistent with the relevant
national criminal justice system.
e)
Providing proper assistance to victims throughout the legal process.
f)
Taking measures to minimize inconvenience to victims, protect
their privacy where necessary, and ensure their safety,
as well as that of their families and witnesses on their behalf,
from intimidation and retaliation. Avoiding
unnecessary delay in the disposition of cases and the execution
of orders or decrees granting awards to victims.
Sexual
Abuse and Rape are the most heinous offences committed against body. Not a single sector remains untouched by sexual
harassment. Now a day’s, sexual harassment at
work place is speeding up in our society. It decreases work
performance, losses promotional opportunities, defamation, depression, anxiety, panic attack,
trauma, sleeplessness, shame, guilt, self-blame, difficulty in concentrating, fatigue, loss of motivation,
eating disorder, feeling angry, loss of self confidence, overall loss of trust
in people, problems with intimacy,
withdrawal and isolation. Sexual harassment does not remain untouched even in a single sector.
Under
Article 15 it is provided that there would be no discrimination on the basis of caste, religion, sex and under Article 16,
the equality of opportunity is given. Article 39 ensures the maintenance of the dignity of the women worker and
provides the safe workplace
environment. Also Article 21 talks about right to life. It is the fundamental right of the victims of sexual offences
to live with dignity in society. Sexual harassment at workplace Act 2013, defines aggrieved
woman that includes a woman who is working
at a place, visiting a workplace, student,
domestic worker, regular
temporary ad-hoc daily wager,
contract worker, probationer trainee[14].
For the growth and prosperity of any
organization, safe working environment is the duty of an employer. He is
obliged to file a complaint if there
is any case of sexual harassment found in his institution. He should assist the employees in every possible
manner. To spread awareness in his organization with regard to the matters of sexual harassment and the safety of the woman, this Act broadens the scope of workplace. It includes
public as well as private organization.
Delhi Victim
Compensation Scheme, 2018 PART
II
Compensation Scheme for Women Victims,
Survivors of Sexual Assault and other Crimes,
it came into force on October 2, 2018. It applies to the victims
and their dependents who have suffered loss or
injury, as the case may be, as a result of the
offence committed and would require rehabilitation. Victim means a
person who has suffered loss or injury as a result of the offence
and in the case of his death, the expression ‘victim’ shall mean to
include his or her guardian
or legal heir.
Under this scheme, dependent includes wife, husband, father, mother,
grandparents, unmarried daughter and
minor children of the victim as determined by the Delhi State Legal Services Authority or District Legal
Services Authority. On the basis of report of
Sub Divisional Magistrate of the concerned area, Station House Officer
or Investigating Officer or on the
basis of material placed on record where the dependent by way of affidavit
or on its own inquiry.
A fund is created under this scheme for the compensation
of the victims of sexual offences. The victim and his dependence shall be eligible for the grant of compensation
after satisfying the criteria that she should not have been compensated for the loss or injury under any other
scheme of the Central Government or the State Government. Provided
that the amount of compensation received under any
other scheme shall be adjusted from
the compensation payable under this
scheme, only the remainder shall be payable by the Delhi Legal Services Authority.
An application for the award of compensation can be filed by the victim or her dependents or the Station House Officer of
the area and it shall be submitted along with
the copy of First Information Report, Medical Report, Death Certificate
if available, copy of the judgment,
recommendation of the court if the trial is over, to the State or District Legal Services Authority. The secretary of
the respective Legal Services Authority shall
decide the application as per the scheme.
The Legal Services Authority
can retain inquiry and decide
the matter itself or may call any application, recommendation moved before
any of the Legal Services
Authority for disposal.
Relief awarded under this scheme is the compensation to the victim
or their dependents to the extent as specified
in the schedule.
1.
Gravity of the offence and the
severity of mental or physical
harm or injury suffered by the victims.
2.
Expenditure incurred or likely to be incurred on the
medical treatment for physical or
mental health of the victim, funeral, travelling during investigation, inquiry,
trial (other than diet money).
3.
Loss of education opportunity as a consequence of the
offence, including absence from
school or college due to the mental trauma, bodily injury, medical treatment, investigation and trial of the offence,
or any other reason.
4.
Impact on employment as a result of the offence,
including place of employment due to
mental trauma, bodily injury, medical treatment, investigation and trial of the offense, or any other reason.
5.
The relationship of the victim to
the offender if any.
6.
Whether the abuse was a single isolated incident or whether the abuse took place over a period
of time.
7.
Weather the victim contracted a sexually transmitted disease or any other disease
as a result of the offence.
8.
Weather the victim
contracted Human Immunodeficiency Virus as a result of the offence.
9.
Any disability
suffered by the victim as a result
of the offence and nature
and extent of the disability.
10.
Financial condition of the victim against whom the offence
has been committed so as to
determine a need for rehabilitation.
11.
Financial loss to the victim or her dependents, extent
and period of the same.
12.
In case of death of the victim, the age of the deceased his monthly income, number of dependents, life expectancy, future promotional and growth prospect
etc.
13.
Any other factor which the State Legal Service Authority
or the District Legal Services Authority may consider
just insufficient.
In
case of utmost hardship and gravity, the member Secretary of the Authority may
suo moto or on application of the victim, after preliminary
verification of the facts proceed to grant such relief as may be required
in the circumstances of each case. The inquiry
under section 357A of the Criminal Procedure Code shall be completed
expeditiously and the period in no
case shall exceed beyond 60 days from the receipt of petition or recommendation. The amount of compensation
awarded under this scheme is given to the
victim. Money will be deposited in the account
of the victim. Out of that amount, 75%
will be deposited in the fixed deposit and 25% will be available for
utilization. In exceptional cases, amount
may be withdrawn for educational and
medical purpose at the
discretion of the State Legal Service Authority or District Legal Service Authority. For interim relief to the
victim, the Authority may order for immediate first aid facility or
medical benefits to be made available free of cost to alleviate the suffering
of the victim on the certificate of
police officer not below the rank of the officer in charge of the police station or magistrate of the area
concerned on the application of the victim or her dependents or suo moto. The amount granted shall not be more
than 50,000 but in extreme hardship
and gravity of the offence, it can be more than 50,000. In case where the victim needs continuous treatment
or surgical intervention, the authority shall forward
the case to the government. The claim made under section 357A of the Code of Criminal Procedure shall not be entertained after a period of three years from the date of occurrence of the offence or conclusion
of the trial. Woman victim compensation fund
is segregated for disbursement of money out of state victim compensation
fund and central fund. Sexual assault
victim means female who has suffered mental or physical injury or both as a result of sexual offences provided in Indian
Penal Code, including Section 376A (causing death or resulting
in persistent vegetative state of victim),
Section 376B (Sexual
Intercourse with his own wife who is living under decree of separation),
section 376C (Sexual intercourse by a person in Authority), Section 376D (Gang Rape), Section
376E (Repeat Offenders
of Rape) Section
354A (Sexual Harassment), Section 354B (assault or use
of criminal force to woman with intent to disrobe),
Section 354C (Voyeurism), Section 354D (Stalking), and Section 509 (word, gesture
or act intended to insult the modesty of a woman).
Compensation amount under the scheme
Loss of life - 5,00,000
to 10,00,000
Gang Rape - 5,00,000
to 10,00,000
Rape - 4,00,000
to 7,00,000
Unnatural Sexual Assault - 4,00,000
to 7,00,000
Loss of any limb or part of body resulting permanent
disability of 80% or above
- 2,00,000
to 5,00,000
Disability below 80% but above 40% - 2,00,000
to 4,00,000
Disability below 40% but above 20% - 1,00,000 to 3,00,000
Disability below 20% -
1,00,000 to 2,00,000 Previous physical
or any mental injury requiring
rehabilitation
- 1,00,000 to 2,00,000
Loss of fetus or miscarriage as a result
of Assault or loss of fertility
- 2,00,000
to 3,00,000
In case of pregnancy
on account of rape - 3,00,000 to 4,00,000
In
case child is born out of pregnancy, compensation or part thereof may be
disbursed in favour of child. If a
woman victim of sexual offence is covered under more category of the schedule, she shall be entitled to be considered for combined value of the compensation.
Conclusion and Suggestions:
Honorable
Supreme Court has directed all the States to implement the new scheme of 2018, but only few States have amended
their own schemes.
There is a huge gap regarding
amount of compensation provided for victims of same offence under different schemes. It is seen that in some cases
the amount of compensation is very low whereas
in very few, it seems to be adequate. Guidelines for the Public
prosecutors and police should be provided in this scheme.
Training must be given to them so that they can apply the victim friendly environment.
Their attitude and behaviour should be more sympathetic towards
the victim. Educate
and quick monetary
aid is required to be ensured
in order to make the victim able to face hurdles which are monetary and aid required for medical and psychological
treatment. The amount of compensation decided
under the victim compensation scheme shall be disbursed the victim or to her dependents as the case may be from a special fund created for this purpose.
Job assistance as per the
qualification could help in the longer run. Awareness regarding Legal Service Authority
and Victim Compensation Scheme is needed for achieving
justice. Women Advocates should be appointed at each and every police station for providing information regarding Victim
Compensation Scheme to the victims of sexual
offences. Copy of victim compensation scheme must be provided to the
victim at the time of registering the case and the printed copy should be
posted on the wall of every police station
and court premises
in regional language.
The procedure of getting compensation from the government should be simple and accessible to the victim.
There should be a statute regarding victim compensation in India.
Various efforts are made to improve
the welfare of victims by the Indian judiciary but there is a lot to be done in order to make conductive environment for the victims
of sexual offences.
There
should be recognition of victim advocates and restorative justice advocates,
which can lead alliances,
partnerships and collaborations to support or promote restorative justice reform of the criminal justice system.
The accountability should be fixed on such officers who are reluctant in their duty for fixing the compensation.
There is an imperative need to review the traditional criminal justice system to stop the re-victimization of the survivors of sexual offences. Victim’s participation at
various stages of trial is the need
of hour.
[1] Declaration of Basic
Principles of Justice
for Victims of Crime
and Abuse of Power, available at: http://www.un.org.
[2] Code of Criminal (Amendment) Act, 2008, Sec 2(wa)
[3] (1995) 1 SCC 14
[5] Smt. Bhavri
Devi v. State of Rajasthan (1997)
1 WLC 42
[7] Government of India, Committee
on Reforms of Criminal Justice System (Ministry of Home Affairs,2003) available at: http://mha.nic.in
[13] The declaration of basic principles of justice for victims of crime and abuse of power available at: http//www.un.org.
Article Information
COMPENSATION SCHEME: A CRITICAL STUDY ON SURVIVORS OF SEXUAL OFFENCES
Authors: SHARDA, DR. AJEET KUMAR SINGH
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/06/28
- Issue 7
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International Journal for Legal Research and Analysis
- Abbreviation IJLRA
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