Open Access Research Article
RIGHT OF VICTIM FOR COMPENSATION: AN ANALYSIS
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Article Details
RIGHT
OF VICTIM FOR COMPENSATION: AN ANALYSIS[1]
AUTHORED BY - SAHIL JINDAL
Introduction
In a legal aid program organized in
the year 2017, the then Chief Justice of India, Justice J.S. Khekhar had noted,
that “Ours is a strange country...While legal machinery works overtime for giving
terrorists and hardcore criminals access to justice, there is hardly a
mechanism to reach out to the victims. The terrorists manage to get better
legal assistance, while victims of horrendous crimes often get a raw deal in
India’s criminal justice system”.[2] To
ally this system, the Hon’ble Justice had then demanded that the year 2017 be
observed as the ‘Year Of Victims’. Thus, the demand for victim justice has been
growing ever high since the term victimology was coined by Benjamin Mendelson
in 1947.
Meaning: Victim
The connotations of term ‘victim’
vary in different legal, social, psychological or criminological contexts.
According to the Declaration of Basic Principles of Justice for Victims of Crime and
Abuse of Power, Article 1,“'Victims' 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 acts or omissions that are in violation of criminal
laws operative within Member States, including those laws proscribing criminal
abuse of power."[3]
In 2008, by an amendment in the Code
of Criminal Procedure, 1973, Section 2(wa) was added (now Section 2(1)(y) of
the Bharatiya Nagrik Suraksha Sanhita, 2023), under which the term victim has
been defined as 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.[4]
Meaning:
Compensation
Tort law as
evolved by the common law courts incorporates a golden principle of ‘Ubi jus ibi
remedium’ which states that for each wrong there is a remedy and the standard of
equitable justice requires that wrongs should not remain un-redressed. The compensation
is the most grounded restorative measure in tort law and the guidelines
relating to the affirmation of damages and compensation in tort are entrenched
therein (largely on basis of common law cases). It incorporates the proportion of
harms, quantum of harms, evaluation of harms, goal of the miscreant, vicinity of
the reason and so forth.
Speaking
in literal terms, compensation means the monetary remuneration which is given to
amend for injury, with the purpose of that compensation being to provide or
make good the losses suffered by the victim. It can be given either to the
legal representative of the deceased (if that is the case) or the person who
has sustained pecuniary/monetary loss. Generally, the term is limited to mean monetary
compensation only, which is calculated by including the non-monetary head as
well, thereby making pecuniary and non-pecuniary loss the bases for the
calculation.[5]
Historical
evolution of victim compensation
Initially, the
premise of civil law depended upon the rule of installment of remuneration for
private wrongs as a cure, and the arrangement of criminal law worked on the
guidelines of rebuffing the people whose conduct is ethically guilty. In other
words, the very goal of the civil law system was to provide compensation for
private wrongs but whereas the system of criminal law aimed at punishing the
persons whose behavior is morally culpable. Until the 1970s the criminal equity
framework completely eclipsed the trauma faced by the victims. Towards 1970s'
the previous disposition of unfortunate casualties marginally changed to an
extent and now there was a little recognition of rights of victims as well. However
it was not until the 1980s that a national development for "exploited people's
rights" started demanding changes in the criminal equity framework. Presently
this very distinction among common and criminal law has been blemished and
remuneration is being granted as an issue of right not in criminal law but
rather likewise in established law, ecological law and for infringement of
human rights and so forth.
Justification
for Victim Compensation
Though
by late 20th century there was a recognition (however subtle) that victims and
their rights need to be considered for a true dispensation of justice but there
was no consensus on why actually they need to be compensated. Two of the
earliest authors in this area of law, pondering upon the justifications, made
the case for four principal goals: “social welfare, social contract, symbolic,
and instrumental.”[6]
In
a layman terms compensation is an astute idea and if successfully assigned it holds
the esteem between the hurt and the injurer. Harmed person's internal identity
gets satisfied and he feels feeling of belongingness and security in the overall
population. The justification for idea of compensation may be summed up as
follows:-
·
Socially, granting pay recognizes that victimization of any individual is a
wrongdoing as it is only for a wrong that a compensation is demanded.
·
Individually, the unfortunate individual's torment and agony are recognized
which gives a psychological victory in the pursuit of justice. It acts as a
morale boost to forget what has happened in the past.
·
Economically, compensation can help exploited people in reconstructing
their lives. This holds special significance where victim was a sole of a
primary breadwinner for the family but for an act is unable to meet the ends.
Here the compensation acts as a buffer for sustaining the needs of the family
in general and individual victimized in specific.
·
As a retributive as well as deterrence dimension, compensation individually
paid by offenders can establish a type of discipline and discourage them as
well as others from resorting to any of the acts in future. This also has
implication for others with deviant attitudes to not to resort to any such act
due to the fear of heavy compensation as well as penal consequences.
·
Legally, the preamble stipulates Justice as an ideal in socio economic and
political dimensions. By compensating an individual to an extent realizes
justice and the legal machinery also passes the small test of justice where
justice should not only be done but also seem to be done.
·
International convention on civil and
political rights 1966, International convention on social economic rights 1966
as well as other specific conventions on rights of victims, which warrant the
state to manage the human rights and distinctive rights of compensation also
are valid justifications for victim compensation law in pursuance of Article 51
of The Constitution of India.
International Perspective On Victim Compensation
At
the global level, a very important duty of criminal justice system towards the
victims of crime was neglected until victimologists and advocates collectively
voiced through the initiative of World Society of Victimology, 1979 and spearheaded
the cause of victims and their rights in the criminal justice system.[7] Recognizing
that the rights of victims had not been adequately addressed, the General Assembly
of United Nations, in 1985, adopted the Declaration of Basic Principles of
Justice for Victims of Crime and Abuse of Power[8]
(Victims’ Declaration) and it became a ‘Magna Carta’ for the victims broadly emphasizing
four important rights namely, access to justice, restitution, compensation and
assistance to victims of crime and abuse of power. The importance of including
provisions whereby offenders may compensate the victims for their wrong doings
have been duly recognized in this declaration in the following words: “offenders
or third parties responsible for their behaviour, should, where appropriate,
make restitutions to the victim, their families or dependents. Such restitution
should include the return of property or payment for the harm or loss suffered,
reimbursement of expenses incurred as a result of the victimization, the provision
of services and the restoration of right”.
According to the Basic Principles
and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations
of International Human Rights Law and Serious Violations of International Humanitarian
Law, “Compensation should be provided for any economically assessable
damage, as appropriate and proportional to the gravity of the violation and the
circumstances of each case, resulting from gross violations of international
human rights law and serious violations of international humanitarian
law, such as:
a) Physical
or mental harm;
b) Lost opportunities,
including employment, education and social benefits;
c) Material
damages and loss of earnings, including loss of earning potential;
d) Moral
damage;
e) Costs required
for legal or expert assistance, medicine and medical services, and psychological
and social services.”[9]
Indian Perspective On Victim Compensation
The legislative framework related to
the compensatory relief to victims of crime in India may be traced to the Code of
Criminal Procedure, 1973, the Probation of offenders Act, 1958 and the Motor
Vehicle Act, 1988:
Compensation under Code of Criminal Procedure, 1973
·
Sub-sections
(1) and (3) of Section 357 of the Code vest powers within the trial court to
award compensation to victims of crime whereas similar power is conferred to
the appellant and revisional court under sub-section (4). The Court may direct appropriation
of the whole or any portion of fine recorded from the offender to be paid as compensation
to the victim of crime.
·
The
compensation ordered under Section 357(1) may be for costs, damage or injury
suffered or loss caused because of the death or monetary loss incurred because of
the theft or destruction of property etc.
·
Sub-section
(3) further empowers the court, in its discretion, to order the accused to pay
compensation to the victim of his crime, even though no fine has been imposed on
him.
·
Section
358(1) provides that compensatory relief to victims of unlawful arrest or
detention by police without sufficient cause.
·
Section
250 of the Criminal Procedure Code 1976, provides for compensation for accusation
without reasonable cause.
Compensation under Probation of offenders
Act, 1958
Section
3 of the Act provides for release of offenders after admonition in cases in
which crime is punishable with “imprisonment for not more than two years or
with fine or with both”. Section 4 provides for probation in some more serious
cases, when offence is punishable with death or imprisonment for life. While
exercising its power under Section 3 or 4 of the this Act, the court may in its
discretion grant “reasonable compensation” to any person for loss of injury
caused to him by commission of offence and cost of the proceedings.
Compensatory
Justice to Victims under certain other statutory provisions
·
The Fatal Accidents Act, 1855 provides for compensation to
families (dependants) for the loss occasioned by the death of a person caused
by an actionable wrong.
·
The Workmen’s Compensation Act, 1923 was enacted with a view to provide compensation
to workmen working in industry.
·
The Motor Vehicles
Act, 1988 gives “statutory basis to the liability to pay compensation in
the certain cases on the principle of no fault”.
State
Liability to pay compensation
In 1983, the Honorable
Supreme Court recognized the need for state compensation in cases of abuse of power
by the State machinery. In the landmark case of Rudul Shah vs. State of Bihar[10],
the Supreme Court gave order to the Government of Bihar to pay to Rudul Shah a
sum of Rs.3o,ooo as compensation, which according to the court was of a
“palliative nature” in a case of illegal incarceration of the victim for long
years. In another landmark case of D.K.
Basu vs. State of West Bengal[11],
the Supreme Court observed 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”. In Malkiat Singh v. State of U.P.[12], the court
awarded 5 lakh as compensation to the family of each victim. In this
case, 1o Sikh youths were killed in a fake encounter by UP police. In State of M.P. v. Mangu[13], the Hon'ble Supreme Court held that “the
statutory liability to pay compensation to the complainant is on the accused.
The State cannot be directed to pay compensation under Section 357”.
In the year of 2000, a committee was
constituted under chairmanship of Dr. V.S. Malimath i.e. ‘Committee on Reforms of Criminal Justice System’. It submitted its
report in 2003 under which many recommendations were made including those
relating to the ‘Justice to Victims of Crime’. The report also recommended that
victim compensation is a state obligation in all serious crimes “whether the offender
is apprehended or not, convicted or acquitted”.
Judicial Response
The commitment
of legal machinery to change the cases of casualties of wrongdoing is no less
huge. The higher courts have assumed a predominant job in guaranteeing compensatory
equity to the casualties of wrongdoing. While granting such compensatory
alleviation, they have practiced due consideration and alertness to guarantee
that individuals' confidence in legal process isn't broken and the ‘unfortunate
casualties’ defensive rights are not denied to them. A portion of the milestone
judgments of the Supreme Court guaranteeing remedial equity to casualties of wrongdoing
mirror the developing array of legal arm of justice to ensure the privileges of
exploited people.
The court
shaped the jurisprudence by ‘permitting compensation' under Article 32 and 226 of
the Constitution searching for approval or security of significant rights. There
exists a lot of circumstances where the compensation has been allowed by the
Supreme Court to the setbacks of the bad behaviour.
The main
case in the line was Prabhu Prasad Sha v State of Bihar[14]
wherein the Hon'ble SC not just maintain the conviction yet in addition
granted fine for Rs 3000 to be paid by him to the offspring of the perished. The
court further associated the general guideline of condemning i.e. while passing
a sentence the court must remember the proportionality among offense and
punishment with allowing of pay and that while forcing the fine court must
think about gravity of offense and the monetary state of the wrongdoer. In another
case of Palaniappa Gounder v Sate of Tamil Nadu[15]
the Supreme Court reduced the amount of fine imposed by the High Court
from Rs 20,000 to Rs 3,000 and observed that:
“It appears to us that the High Court
first considered what compensation ought to be awarded to the heirs of the deceased
and then imposed by way of fine an amount which was higher than the compensation
because the compensation has to come out of the amount of fine. Apart from the
fact that even the compensation was not fixed on any reliable data, the High Court,
with respect, put the cart before the horse in leaving the propriety of fine to
depend upon the amount of compensation.”[16]
Next
in the land mark case of Sarwan Singh v Stateof Punjab[17]
the Hon'ble Court observed that:
“The object of the section therefore, is to
provide compensation payable to the persons who are entitled to recover damage
from the person sentenced even though fine does not form part of the sentence.
Though Section 545 enabled the court only to pay compensation out of the fine
that would be imposed under the law, by Section 357(3) when a Court imposes a sentence,
of which fine does not form a part, the Court may direct the accused to pay compensation.
In awarding compensation it is necessary for the court to decide whether the
case is a fit one in which compensation has to be awarded. If it is found that
compensation should be paid, then the capacity of the accused to pay compensation
has to be determined. In directing compensation, the object is to collect the
fine and pay it to the person who has suffered the loss. The purpose will not be
served if the accused is not able to pay the fine or compensation for, imposing
a default sentence for non-payment of fine would not achieve the object. If the
accused is in position to pay the compensation to the injured or his dependents
to which they are entitled to, there could be no reason for the court not directing
such compensation. When a person, who caused injury due to negligence or is made
vicariously liable is bound to pay compensation it is only appropriate to direct
payment by the accused that is guilty of causing an injury with the necessary mens
rea to pay compensation for the person who has suffered injury. And also: It is
the duty of the court to take into account the nature of the crime, the injury
suffered, the justness of the claim for compensation, the capacity of the accused
to pay and other relevant circumstances in fixing the amount of fine or compensation.
After consideration of all the facts of the case, we feel that in addition to
the sentence of 5 years' rigorous imprisonment, a fine of Rs.35oo on each of the
accused under Section 3o4(1), I.P.C. should be imposed.”[18]
The case of Harikishan and State of
Haryana v Sukhbir Singh and others[19]
is the second most important case after Sarwan Singh where court repeated
its firm understanding once again in following words:
“The
payment by way of compensation must, however, be reasonable. What is reasonable,
may depend upon the facts and circumstances of each case. The quantum of compensation
may be determined by taking into account the nature of crime, the justness of
claim by the victim and the ability of accused to pay. If there are more than one
accused they may be asked to pay in equal terms unless their capacity to pay
varies considerably. The payment may also vary depending upon the acts of each
accused. Reasonable period for payment of compensation, if necessary by installments,
may also be given. The court may enforce the order by imposing sentence in default.”[20]
It
is to be noted that compensation by the State for the action of it's official
was evolved by the Hon'ble Court against the doctrine of English law:
"King can do no Wrong" and clearly stated in the case of Nilabati
Behra v State of Orissa[21]that
doctrine of sovereign immunity is only applicable in the case of tortuous act of
government servant and not where there is violation of fundamental rights and hence
in a way stated that in criminal matters if there is violation of fundamental
rights this doctrine is not applicable.
The
case of Bhim Singh v State of J&K[22]is
another important case where Bhim Singh an MLA was arrested by the police only
to prevent him to attended the Legislative Assembly, the Hon'ble Court not only
entertained the writ petition of his wife but also awarded the compensation of Rs.
50,000 to be paid by the state.
Recent Case Laws
1)
Archbishop Raphael Cheenath Vs State of Odisha[23]
The Supreme Court of India in this
case directed the Odisha Government to pay additional compensation to the
victims of 2008 Communal Violence in Kandhamal District of Orissa. The Bench
comprising Chief Justice TS Thakur and Justice UU Lalit here disposed the Writ
Petitions which were filed in public interest seeking to highlight failure on
part of State of Orissa in deploying adequate Police Force to maintain law and
order in Kandhamal District of Orissa and in protecting innocent people whose
human rights were violated after the unfortunate assassination of Swami
Laxmanananda Saraswati and others on 23.08.2008 by Maoists.
2)
Ravada Sasikala vs State Of Andhra Pradesh and ors.[24]
The Supreme
Court here set aside Hyderabad High Court’s order that reduced the sentence
imposed on a convict in an acid attack case to the period already undergone. A
division bench of Justice Dipak Misra and Justice R Banumati allowed the appeal
filed by the victim in the case and directed the accused to pay a compensation of Rs 50,000 and the state
to pay a compensation of Rs 3 lakhs.
3) S Nambi Narayan vs Sibby Mathews and
others[25]
This case
is a landmark judgement of compensatory jurisprudence in India where the
highest amount of rupees 50 lakhs were granted as compensation to one of the
former I.S.R.O scientist
Nambi Narayanan.
Law
Commission’s Report
Fourteenth
Law Commission of India in its 154th report on the Criminal Procedure Code
while expressing its deep concern for the crime victims had suggested a
comprehensive victim compensation scheme particularly for those of custodial
crimes, rapes, child-abuse etc. to be administered on the recommendations of a
trial court by the legal services authorities constituted at the district and
state levels under the Legal Services Authorities Act, 1987.[26] The
report observed: “…In India the principles of compensation to crime victims
need to be reviewed and expanded to cover all cases. The compensation should
not be limited only to fines, penalties and forfeitures realized. The state
should accept the principle of providing assistance to victims out of its own
funds…”
Malimath
Committee Recommendations
Regarding
victim compensation the Malimath Committee has recommended that: “Victim
compensation is a state obligation in all serious crimes, whether the offender
is apprehended or not, convicted or acquitted. This is to be organized in a
separate legislation by parliament. The draft bill on the subject submitted to
Government in 1995 by the Indian Society of Victimology provides a tentative
framework for consideration.”
The
committee has also recommended that:
“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 for 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 should
be understood that victimology and justice for victims of crime is not
exclusively a legal problem, it also has sociological, psychological, financial
and ethical implications which need to be addressed jointly by experts working
in these fields adopting a multidisciplinary approach. A community based joint
Victim Impact Panel on the American pattern may be constituted comprising
lawyers, judges, sociologists, psychologists, women activists, politicians etc.
to decide victim’s rights and claims and their rehabilitation in the society.[27]
Conclusion
Since
‘the future of criminology is victimology’, therefore, it is quintessential in
ours welfare state to support the victims and aware all the individuals of the
society about the various schemes and provision so as to safeguard the probable
victims of offences as well as to ensure remedy for the already suffering
victims. This would be in consonance to the old adage of “prevention is always
better than cure”.
However
in the ultimate analysis it has to be the society which has to be the harbinger
of all reforms and not everything can be posted for institutional
interventions. In our common parlance we as active citizens must not only shred
the ideology of victimizing anyone in any form; but also give our non-chalant
attitude “chalta-hai culture” and oppose any victimization in any form in our
surroundings. We must object, protest, and even enforce the legal machinery as
active citizens, if ever, we happen to come across any mis-behaviour of a form
that tends to victimize anyone.
Thus
the aims of the constitution for a ‘just society’ and the vision of Gandhiji
for ram rajya can only be established when there is “A VICTIMLESS SOCIETY”. To
attain this objective all the citizens need to compulsorily obey their
fundamental duties, the state needs to protect the fundamental rights under
Part III of the constitution and also the directives under Part IV. The
judiciary needs to actively ensure that victimizers are actively brought within
the borders of law after giving co-equivalence to the sentiments of the
victims. Thus a victimless society would not only be a true tribute to Gandhiji
but also a reason for rejoice for the departed heavenly souls of our freedom
fighters who brought independence with their ‘sweat and blood’ only to see
India devoid of any miseries. Thus, we need to wake up before the souls of our
forefathers haunt us for being a dormant citizenry and ensure the ideal of ‘satyameve jayate’ in its true spirit.
Suggestions & Recommendations
Thus, after
making a thorough analysis, it is reflected that Indian position on victim compensation
has positively changed during the last few decades. Few proposals can be summed
up as under:
1.
A more noteworthy dimension of injured individual support
in the Indian Criminal Justice framework is required.
2.
Evolving ideas like Victim Impact Statement as is
available in USA will build injured individual's support. A Victim Impact
Statement will contain the accompanying:
i. The
physical, mental or enthusiastic effect of the wrongdoing.
ii. The
mischief done to family relationship by the wrongdoing, for example, the
departure of a guardians and so forth
iii) The
requirement for compensation.
iv) The
injured individual's sentiment of a proper sentence of a wrongdoer.
3.
Another imperative measure which can be followed is to
make remuneration a statutory ideal, with an arrangement ordering that the judges
need to record purpose behind not granting pay.
4.
State constituted Victim Assistance Fund can be considered
as prompt alleviation which inter alia can help in forestalling further exploitation.
Thus, by incorporating
these recommendations, we can ensure that the victim compensation rights are
available to every individual thereby helping the victims to better navigate
the financial and emotional impacts of their experiences. As these programs
continue to evolve, they serve as a reminder of society’s responsibility to
care for those who have suffered through no fault of their own.
[1] Sahil Jindal, Research Scholar at
Panjab University, Chandigarh.
[2]Editorial, “Make-2017-a-year-for-providing-relief-to-victims-of-crime-cji-khehar”,
The Hindu, 18 March 2017.
[3]United Nations General Assembly Declaration of Basic Principles of Justice for Victim and Abuse of Power adopted in November 1985, Article 1&2, available at: http://www.un.org/documents/ga/res/4o/a4oro34.htm (visited on January 20, 2024).
[4] N.Y. Paranjpe, Criminology and Penology with Victimology,
678 (Central Law Publications, Allahabad, 2011).
[5]G.S.Randhawa, “Victimology and Compensatory Jurisprudence” 166-167 (Central Law Publications, Allahabad 2011).
[6]D.Chappell and L.P. Sutton “Evaluating the Effectiveness of Programs to
Compensate the Victims of Crime,” 468 (Victimology: A New Focus, Volume
II, Society’s Reaction to Victimology 2003).
[7]C.Rajkumar, K.Chockalingam, ‘Human Rights, Justice and Constitutional
empowernment’ 444 (Oxford India, 2007).
[8]UN
declaration on rights of victim at
www.un.org/documents/ga/res/4o/a4oro34.html
(accessed on 11 January 2024).
[9] Retrieved from
https://www.ohchr.org/en/instruments-mechanisms/instruments/basic-principles-and-guidelines-right-remedy-and-reparation
(accessed on 24 January 2024).
[12] AIR 1970 SC 713.
[13]1995 CriLJ 3852.
[16] Ibid.
[18] Ibid.
[20] Ibid.
[22]1984 Supp (1) SCC 504.
[23] 2017 AIR 404.
[24] Criminal appeal no’s 406-407 of
2017.
[25] Civil appeal nos 6637-6638 of 2018.
[27]http://www.shareyouressays.com/essays/justice-malimath-committee-recommendation-on-victims-of-crime-essay/121548 on 26-11-2018 at 6:oo pm
Article Information
RIGHT OF VICTIM FOR COMPENSATION: AN ANALYSIS
Authors: SAHIL JINDAL
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/09/05
- Issue 7
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International Journal for Legal Research and Analysis
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